Thompson & Bane - [2022] FedCFamC1F 115

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Thompson & Bane [2022] FedCFamC1F 115

File number(s): ADC 593 of 2010

Judgment of: MEAD J

Date of judgment: 8 March 2022

Catchwords: FAMILY LAW – CHILDREN – With whom the children live and spend time – Best interests of the children – Where the mother seeks sole parental responsibility and time spending with the father subject to reunification therapy requirements – Where the father seeks equal shared parental responsibility and the children to live with him – Where litigation commenced in 2010 – Where the children at time of trial were aged 14 and 12 – Where there was a previous trial in 2018 – Where the children have spent little time with the father since 2014 – Where the children require psychological support –Where the father was found to be lacking in knowledge of the children’s medical and therapeutic needs – Where the father lacks insight into his behaviour – Where the mother suffers from anxiety and attributes symptoms of “[Medical Condition R]” to the father’s conduct towards her during the relationship – Where that issue has not previously been raised by the mother – Where the mother has previously been found to have deliberately obstructed the children spending time with the father – Where since the last trial the mother has sought significant psychiatric assistance – Where the mother’s attitudes to the children spending time with the father have ameliorated – Where there is a high level of acrimony between the parties – Where the Court places significant weight on the children’s views – Where the children remain opposed to spending time with the father – Where the children are to live with the mother – Where there is no order for the children to spend time with the father – Where orders made for electronic communication.

Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5)

Cases cited:
McCall & Clark (2009) FLC 93-405

Mazsorski & Albright (2007) 37 FamLR 518

Division: Division 1 First Instance

Number of paragraphs: 331

Date of hearing: 22-26 March 2021 and 6-7 April 2021

Place: Adelaide

Counsel for the Applicant: Ms Pangallo

Solicitor for the Applicant: Adelaide Family Lawyers

Counsel for the Respondent: Ms Ross

Solicitor for the Respondent: Daniel John Lawyers

The Independent Children's Lawyer: Ms Olsson

Solicitor for the Independent Children's Lawyer: Silkwoods
ORDERS

ADC 593 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS THOMPSON

Applicant

AND:
MR BANE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MEAD J

DATE OF ORDER:

8 MARCH 2022

THE COURT ORDERS THAT:
1.That all previous parenting orders be discharged.
2.That the mother have sole parental responsibility for B born … 2006, C and D both born … 2008 (collectively “the children”).
3.That the children live with the mother.
4.That the mother inform the father in writing within seven (7) days of any decision impacting the long-term care and welfare of the children including but not limited to the following:
(a)the children’s education (both current and future) including but not limited to the details of any proposed change to the children’s schools; and
(b)the children’s religious and cultural upbringing.

5.That B, C and D spend time with the father at such times and upon such conditions as may be agreed between the parties from time to time in accordance with any wish expressed by the children or any of them.
6.That the father communicate with the said children by telephone, FaceTime, Skype or similar each Wednesday between 5.30 pm and 6.30 pm or such other occasion each week as may be agreed between the parties with the duration of any telephone or other such call with each child to not exceed ten (10) minutes unless otherwise agreed.
7.That the father will initiate the call to the children at his expense PROVIDED THAT the mother shall facilitate the said call and provide the father with the relevant telephone number to be called as may be applicable from time to time.
8.That in addition thereto the children or any of them be at liberty to communicate with the father by telephone, FaceTime, Skype or similar at any reasonable time as they may wish with the mother to assist C and D in initiating such communication if necessary (NOTING B is 15 years of age).
9.That the father be at liberty to communicate with the children by way of letters at any time and cards and gifts to coincide with the children’s respective birthdays, Christmas and other special occasions.
10.That each party keep the other informed at all times of their residential address, their contact telephone number and an email address on which they can be contacted at short notice and advise the other of them of any change thereto within forty-eight (48) hours of such change.
11.That the parties be at liberty to obtain at their own expense copies of school reports, school newsletters and school photographs of any school or educational institution which the children from time to time may be enrolled.
12.That in the event of B, C and D or any of them requesting in writing the presence of the father for the purpose of attending a specific school, sporting or other event in which they may be involved or attending he shall be at liberty to attend such event PROVIDED THAT if it is his intention to do so, the father shall provide notice to the mother AND FURTHER PROVIDED THAT in such case the parties shall be restrained and an injunction is hereby granted restraining each of them from approaching the other or in any way attempting to communicate with each other at that event unless otherwise agreed in writing prior to such event.
13.That the parties be restrained from:
(a)discussing the Family Court proceedings with the said children;
(b)from denigrating the other parent or members of the other parents’ families in the presence of or within the hearing of the said children;
(c)discussing these proceedings or allegations made in these proceedings with staff or parents at the children’s school; and
(d)communicating with each other by telephone or SMS text message SAVE AND EXCEPT as may be permitted by this order or in respect of urgent and serious medical issues and arrangements that may arise.

14.That the mother do keep the father informed of all treating medical practitioners and allied health professionals for the children and do all things necessary to enable the father to be permitted to communicate with and receive information from all such treating professionals.
15.That if any of the children are required to attend upon any psychologist, social worker, counsellor (or any other agency employing such health professionals) or psychiatrist, the mother shall provide to the said health professional a copy of the Family Report dated 23 September 2020, a copy of the Reasons for Judgment of Berman J of 27 April 2018 and a copy of these Reasons for Judgment.
16.That in the event of a medical emergency arising in respect of B, C or D or any of them then the mother shall advise the father as soon as practicable of all details relating to the emergency, and in the event that the children or any of them are hospitalised, do all things necessary to facilitate the father’s attendance on the children or any of them in the hospital PROVIDED HOWEVER that such hospital visitation shall be strictly in accordance with B’s wishes and strictly in accordance with the wishes of C and/or D at such time as they shall attain the age of 15 years.
17.The order for the appointment of the Independent Children’s be discharged.
18.That all extant applications be otherwise dismissed.

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

It is regrettable that yet again the parenting arrangements for the parties’ three B, C and D require judicial determination.
B was born … 2006 and C and D, twins, were born … 2008.
The parties have been involved in litigation regarding parenting issues since 17 February 2010.
The first tranche of the proceedings commenced on 17 February 2010 and was resolved by way of detailed consent order on 23 November 2010, which included provision for property settlement.
The second tranche of the litigation was commenced on 22 August 2012 and resolved by a further detailed consent parenting order on 9 April 2013.
It is of note that the parenting order of 9 April 2013 provided for the mother to have sole parental responsibility for the children in lieu of the order for equal shared parental responsibility contained in the order of 23 November 2010.
The third tranche commenced on 24 March 2014 and was resolved by way of a further consent order on 9 July 2014 dismissing the proceedings.
The fourth tranche, commencing with an Initiating Application filed by the father on 13 January 2015 was determined by the Honourable Justice Berman by way of final order dated 27 April 2018, following a four day trial in March 2018.
The proceedings that require determination by me were an Initiating Application filed by the mother on 3 September 2020 and a Response filed by the father on 9 September 2020. Those substantive proceedings were preceded by a series of Applications in a Case and Contravention Applications, commencing by way of an Application in a Case filed by the mother on 13 August 2018, less than four months after the final order made by Berman J.
B has been the subject of litigation between her parents since she was three years and four months old, and the twins since they were fourteen months old. There is little doubt that the dysfunctional relationship between their parents leading to eleven years of relentless litigation will ultimately have a profound effect on the psychological wellbeing of all three children.
As Berman J said in [282] of his Reasons for Judgment delivered 27 April 2018:
In the circumstances of this case where the first proceedings were issued by the mother in February 2010 and there has been effectively ongoing litigation since that time, the Court is entitled to express a degree of pessimism that orders that are to be made will resolve issues between the parties. They have thus far failed to recognise the horrific consequences of their conduct in terms of their children’s presentation…
Unfortunately, but predictably, his Honour’s pessimism was well-founded.
Orders sought by the parties
At the commencement of the proceedings the mother sought final orders in terms of her Initiating Application filed 3 September 2020. At the commencement of closing submissions however, the mother’s counsel tendered a draft minute of order of the orders sought by the mother (Exhibit “M4”) in the following terms:
1.        That all current orders be discharged.
2.That the children [B] born … 2006, [C] born … 2008 and [D] born … 2008 live with the mother.
3.        That the mother have sole parental responsibility for the said children.
4.That the children spend time and communicate with the father subject to the recommendation of the therapist conducting reunification therapy.
5.That the father be at liberty to send cards and gifts to the said children for special occasions, such gifts and cards to be forwarded to the children, by post, to the mother's PO Box and the mother shall use her best endeavours to encourage the children to accept same.
6.That the father be at liberty to telephone the children either by telephone or agreed social media App on two occasions each week on days and times to be agreed.
7.That in the event that the said children do not wish to accept the said gifts or cards, the mother do ensure that same be returned to the father via post to the return address on those items.
8.That the parties communicate via MyMob Families App or similar such App as the parties may agree.
9.That the mother do inform the father, via a support person, of any medical emergency involving the children and keep the father updated as to their condition.
10.      That the mother keep the father advised of the children's school enrolments.
11.That the father be at liberty to request school photographs and reports for the children at his sole expense.
12.That the mother do keep the father informed of all treating and allied health professionals for the children and do all things necessary to enable the father to be permitted to communicate and receive information from all such treating professionals.
13.      That the father be restrained and injunctions be granted restraining him from:
a)Removing the said children from the care of the mother or from any place of recreation or education that the children may be attending without the express written consent of the mother;
b)Attending at or within 200 metres of any school at which the children may be attending from time to time;
c)Attending at the mother's place of residence of (sic) any place where she or the children may frequent; and
d)Attempting to contact the children directly unless otherwise agreed between the parties.
14.That the parties be restrained and injunctions be granted restraining each of them from:
a)Abusing, denigrating or criticising the other in the presence or hearing of the children, or at all, or from encouraging or allowing any other person to do so;
(b)Discussing or showing any other person or the children any documents from these proceedings, including any privileged communications between solicitors; and
(c)Discussing any allegations or issues raised in these proceedings with, or in the presence or hearing of the children, or allowing or encouraging any other person to do so.
Prior to closing submissions counsel for the father also tendered an amended proposed draft order marked Exhibit “F7”. The orders proposed by the father in that draft were significantly more detailed than those set out in his Response filed on 9 September 2020 and were in the following terms:
1.That all previous parenting orders be discharged, except paragraphs 13, 14 and 15 of the Orders made on 27 April 2018.
2.That the parents have equal shared parental responsibility for the children [B] born … 2006, [D] born … 2008 and [C] born … 2008 ("the children").
3.That the children do live with the father at the conclusion of a three-month period from the date of these Orders.
4.During the three-month period from the date hereof, the children do reside with their mother and do spend time with their father as follows:
a)Once per fortnight for the first three visits in a park or public place and/or cafe together with the mother, her partner [Mr K], the father's wife [Ms NN], and the children's sibling, [L]
[Although not included in the draft order, it was submitted that this time occur on a Friday or Saturday for 1 hour];
b)Thereafter on one occasion per week in the same terms and conditions in paragraph 4(a) above;
c)In addition to the above, the children do communicate with the father on one occasion each month via "Facetime", with the father to set up a "Facetime" account for the children and to advise the mother of same.
5.That the handover at the conclusion of the three-month period from the date of these Orders pursuant to paragraph 3 above do occur at [handover location U].
6.That the parties and the children engage in therapy with a Family Therapist such as [Ms V, Ms W or Ms Y] to assist with therapy in relation to the children re-connecting with their father and then moving to the primary residence of the father at the conclusion of a three‑month period from the date of these Orders, with the parties to engage the children in a mental health care plan if possible and the father bear the cost of any shortfall with respect to such therapy.
7. That the mother continue her therapy with her Psychiatrist.
8.That the parties ensure that the children continue their therapy with each of their individual therapists.
9.That the children, [C] and [D], do continue to attend at [X School].
10.That the parties do use their best endeavours to ensure that [B] do attend a school.
11.That the parties each be permitted to provide each of therapists involved with the children, children's general medical practitioners, to the mother's psychiatrist, the children's teachers, and to [Ms V], a copy of the Judgment of Justice Mead in these proceedings, a copy of the Judgment of Justice Berman dated 27 April 2018, a copy of the Family Report of

[Ms Z] dated 5 December 2017, and a copy of the Family Report of [Ms AA] dated 23 September 2020.
12.That each of the children's therapists or the Family Consultant, [MS AA], do advise the children of the change in primary residence as soon as practicable after delivery of Justice Mead's Final Orders.
13.That the mother be restrained and an injunction is hereby granted restraining her from repeating past allegations of sexual abuse and family violence by the father to the children's teachers, therapists, health practitioners, or any other person.
14.That if the Court orders that the children continue to live with their mother, then the children do spend time with their father for the first three-month[s] in accordance with the terms set out in paragraphs 4(a) and 4(b).
15.Then at the conclusion of the three-month period from the date of these Orders, the children shall spend time with their father:
(a)each alternate weekend from the conclusion of school on Friday to commencement of school on Monday;
(b)For the first half of each school holiday period;
(c)On Father's Day from 10:00am to 5:00pm.
(d)Each alternate Christmas and each alternate Easter.
(e)On each of the children's birthdays.
16.During the first three-month period from the date hereof, the parties facilitate the children's engagement in family therapy with [Ms V, Ms W or Ms Y].
17.That the parties be restrained and injunctions granted herein restraining each of them from denigrating or permitting any other party to denigrate the other party or any member of the other party's family or friends in the presence or hearing of the children.
18.That the parties communicate with each other in relation to the care, welfare and development of the children via SMS message or email.
19.That the parties do keep each other informed at all times of their current mobile telephone number and email address.
20.That the parties inform each other of any major medical issues with respect to the children and to advise the other immediately if any of the children is admitted to hospital in the event of a medical emergency.

The orders sought by the Independent Children's Lawyer were set out in her Outline of Case Argument tendered to the Court at the commencement of the trial. Those orders were as follows:
1.That all previous parenting orders be discharged.
2.That the mother have sole parental responsibility for the children [B] born … 2006, [C] and [D] both born … 2008.
3.That the children live with the mother.
4.That the father spend time with the children, subject to the wishes of the children on such dates, times and places and upon such conditions as may be agreed between the parties in writing or as ordered by this Honourable Court.
5.That the mother inform the father in writing within seven (7) days of any decision impacting the long term care and welfare of the children including but not limited to the following:-
(a) The children’s education (both current and future); and
(b) The children’s religious and cultural upbringing; and
(c)The children’s health and treatment by any medical practitioner including medication that may be prescribed to any of the said children; and
(d)Changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the father.
6.That the mother be permitted to action the current or any future NDIS Plan for [C] and shall inform the father of any current or any future proposed treatment plan for [C] pursuant to the NDIS Scheme or otherwise.
7.That the mother do keep the father informed of all treating and allied health professionals for the children and do all things necessary to enable the father to be permitted to communicate with and receive information from all such treating professionals.
8.That the parties be restrained from:-
(a)Discussing the Family Court proceedings with the said children;
(b)From denigrating the other parent or members of the other parents’ families in the presence of or within the hearing of the said children;
(c)Discussing these proceedings or allegations made in these proceedings with staff or parents at the children’s school (SAVE AND EXCEPT to notify the school staff about the arrangements provided by this order);
(d)Communicating with each other by telephone or SMS text message SAVE AND EXCEPT as may be permitted by this order or in respect of urgent parenting arrangements that may arise from time to time.
9.That the father shall be at liberty to communicate with the children by way of letters, cards and gifts to coincide with the children’s respective birthdays, Christmas and other special occasions.
10.That the father be permitted to telephone the children and each of them on one occasion each week upon such day and time as may be agreed between the parties but in default each Wednesday between 5.30 pm and 6.30 pm with the duration of any telephone call with each child to be not more than ten (10) minutes unless agreed.
11.That the father will initiate the call to the children and each of them at his expense PROVIDED that the mother shall facilitate the said call and provide the father with the relevant telephone number to be called as may be applicable from time to time.
12.That the father be at liberty to attend all school and sporting events and any other events to which parents would ordinarily attend PROVIDED that if it is his intention to do so, the father shall provide notice to the mother PROVIDED that the parties shall be restrained and an injunction granted restraining each of them from approaching the other or in any way attempting to communicate with each other unless otherwise agreed in writing prior to such event.
13.That if a medical emergency arises THEN the parent with whom the child or children are currently resident shall advise the other party as soon as practicable of all details relating to the emergency and shall allow the other party appropriate time with the child or children during their recovery.
14.That the parties be at liberty to obtain at their own expense copies of school reports, school newsletters and school photographs of any school or educational institution which the children from time to time may be enrolled.
15.That the parties communicate with each other in relation to the care, welfare and development of the children via SMS message or email.
16.That the parties will advise each other within seven (7) days of any change to their telephone numbers, residential address or email address.
17.The appointment of the Independent Children's Lawyer be discharged.
It was her position that the orders she sought were subject to the evidence to be adduced.
In closing submissions she detailed her significant concerns as to how best to craft an order that was in the best interests of the children. She submitted however that the orders she proposed at the commencement of trial were those that would best meet the children’s needs and best interests. She was not of the view that the children’s best interests would be met by removal from the primary care of their mother.
Documents relied on by the parties
The mother relied on the following documents:
(a)her Initiating Application filed 3 September 2020;
(b)her first trial affidavit filed 2 November 2020;
(c)her affidavit in reply filed 16 November 2020;
(d)the affidavit of Mr K filed 2 November 2020; and
(e)the affidavit of Dr BB filed 30 October 2020.
The father relied on the following documents:
(a)his Response to Initiating Application filed 9 September 2020;
(b)his trial affidavit filed 11 November 2020;
(c)the affidavit of Ms NN filed 11 November 2020; and
(d)the evidence of Ms W given under subpoena.
The Independent Children's Lawyer relied on:
(a)the family report of Ms AA dated 23 September 2020;
(b)the evidence of Ms CC, the Principal of X School, Ms DD, a psychologist at a mental health clinic and Ms EE, a teacher at X School, all under subpoena; and
(c)a report of Ms DD prepared in approximately August 2020 (Exhibit “ICL 4”).
The mother and her witnesses Mr K and Dr BB were cross-examined by the father’s counsel and the Independent Children's Lawyer.
The father and his witness Ms NN were cross-examined by counsel for the mother and the Independent Children's Lawyer. The father’s witness Ms W was cross-examined by the Independent Children's Lawyer.
The Independent Children's Lawyer’s witnesses Ms CC, Ms DD, Ms EE and Ms AA were all cross-examined by the respective parties’ counsel.
Background
At the time the trial commenced the orders of Justice Berman made following the four day trial in March 2018 had been in place for almost three years. Paragraph 9 of his Honour’s orders of 27 April 2018 dealt with the issue of the time B, C, and D should spend with their father.
The order provided that B’s time with her father initially occur at any time subject to her wishes, including overnight time should she request to spend time with him. The mother was to advise the father forthwith of any wish expressed by B and facilitate the request as soon as practicable.
It further provided that as and from 19 October 2018 the time was no longer subject to her wishes but rather, was to occur on each alternate weekend from the conclusion of school on Friday, or 3.00 pm if a non-school day, until 6.00 pm Saturday during school term time.
The order with respect to C and D’s time with their father provided for them to be in his care as and from 6 July 2018 from 3.30 pm until 7.00 pm each Friday for a period of eight weeks and as and from 19 October 2019 on each alternate weekend from the conclusion of school Friday, or 3.00 pm if a non-school day, until 6.00 pm on Saturday during school term time.
The order further provided that all three children spend time with their father for the first half of the short term school holidays commencing in 2019 and during the Christmas school holiday periods commencing in the 2018/2019 holiday period for six days in every fourteen day period commencing on the last day of Term 4. The order also provided for specific time during Easter, and on Christmas Eve, Christmas Day and Boxing Day, as well as Father’s Day in each year.
As conceded by the mother in paragraph 6 of her affidavit filed 2 November 2020, time did not occur with any of the children pursuant to the terms of those orders from 27 April 2018 to the date of trial. It was common ground that the children had spent some limited day time periods with their father as negotiated between the parents on a few occasions during that time.
It was common ground that as a result of a change in the father’s employment situation at the commencement of Term 1 in January 2019, he was unable to attend at the school on Fridays to collect the children at the conclusion of school, and accordingly did not do so.
Around that time the mother and children moved residence and the children changed schools.
It was the mother’s case that the father only advised her at the commencement of Term 3 that he was again in a position to comply with the orders with respect to the time of collecting the children on alternate Fridays from school and intended to do so.
Time spending thereafter was no more successful than it had been previously.
The trial in 2018 had occurred against a backdrop of the children having spent little time with their father since the consent orders of 9 July 2014. According to Berman J, none had taken place since August 2017.[1]
[1] Reasons for Judgment of Berman J delivered 27 April 2018 at [39].
The trial that commenced before me in March 2021 occurred against a backdrop of the children having spent little time with their father for almost six years.
Issues in dispute
It was the mother’s position that:
·the orders made by the Honourable Justice Berman in 2018 with respect to the children’s time with their father had not been workable because the children did not want to go into their father’s care and refused to do so;
·on the only few occasions when time spending had occurred by negotiation the children were aware that she was nearby;
·the children’s best interests would be met by a time spending order that was subject to their wishes at all times;
·any time the children spend with their father must occur when she is neither present nor nearby so as to avoid her symptoms of “Medical Condition R” being triggered by the father;
·she was not promoting a position of the children not spending time with their father;
·an order for she and the father to share parental responsibility for the children was not appropriate or workable where they have no capacity to communicate and where she has been and is capable of adequately attending to issues of parental responsibility for the children;
·the children need an opportunity to develop a meaningful relationship with both of their parents; and
·she was supportive of reunification therapy that would allow issues of the children’s relationship with their father to be explored.
It was the father’s position that:
·if the children did not move into his care they would never have an opportunity to have a meaningful relationship with him;
·the mother had no intention of supporting a relationship between he and the children;
·the mother was actively undermining the children’s relationship with him;
·the mother had no intention of genuinely engaging and supporting reunification therapy;
·the children would easily transition into his care and obediently comply with orders to that effect if advised that was to happen, if given three months for he and the children to commence meetings with both families present and also to undertake reunification counselling directed to assisting the children to manage the transition; and
·the mother clearly expressed to the children her negative attitude towards him and that, together with her mental health difficulties, was the reason the relationship between he and the children had broken down.
Position of the Independent Children's Lawyer
The Independent Children's Lawyer, Ms Olsson, submitted that the Court would find that the children have not had an opportunity to develop their relationship with their father and, against a backdrop of ongoing litigation, have effectively “voted with their feet”.
She was not convinced that reunification therapy was realistic taking into account that:
·both parties proposed that it occur after the trial rather than during the lifetime of the proceedings;
·there was unlikely to be any suitable therapist that could immediately take the matter on;
·cost was a significant problem for both parties; and
·it would not be helpful to the children or the parties for the Court to make an interim order in the circumstances of this case.
Although the Independent Children's Lawyer submitted that she was extremely concerned about the impact of the mother’s psychological distress on the children and its effect on their decisions as regards their relationship with their father, she was unable to support an order requiring a change in the children’s residence from their mother’s home to that of their father.
Relevant legal principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides the legislative framework within which the Court determines the parties competing parenting proposals.
Section 60B(1) sets out the objects of the Act as regards to children’s orders, namely to ensure that the best interests of the children are met by:
(a)ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that the children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying the objects are set out in s 60B(2) and provide that, except when it is or would be contrary to the child’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The best interests of the child are the paramount consideration in determining whether to make a particular parenting order.[2] To determine the best interests of a child the Court must consider the factors set out in s 60CC(2) and (3) of the Act.
[2] s 60CA of the Act.
Section 61DA of the Act 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’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 of the child or a person who lives with that parent has engaged in abuse of the child or family violence, and may be rebutted if the Court is satisfied that it would not be in the child's best interests for the child’s parents to have equal shared parental responsibility.[3]
[3] s 61DA(1), (2) and (4) of the Act.
In the event that an order is made for equal shared parental responsibility the Court must consider whether it is in the child’s best interests to spend equal time with each of his or her parents and whether it is reasonably practicable for this to occur.[4]
[4] s 65DAA(1) of the Act.
If the Court determines that such an order is not in the child’s best interests, it must consider whether it would be in the child’s best interests to spend substantial and significant time with each parent and whether that is reasonably practicable.[5]
[5] s 65DAA(2) of the Act.
The Act defines what is meant by substantial and significant time,[6] and specifies that the Court must have regard to certain issues when deciding whether orders are reasonably practicable.[7]
[6] s 65DAA(3) of the Act.
[7] s 65DAA(5) of the Act.
All of those issues must be considered against the backdrop of the requirement that the parenting order the Court makes must be in the best interests of B, C and D as determined in accordance with the provisions of s 60CC of the Act, being mindful of the objects of the Act and the principles underlying those objects.
It was of particular note that the issues in dispute and the tenor of the parties’ cases had changed little since the trial that took place before Berman J in March 2018.
Primary considerations:
s 60CC(2)(a) – The benefit to the child of having a meaningful relationship with both of the child’s parents.
Ostensibly, both parents supported the children having a meaningful relationship with the other of them. The orders promoted by each of them would suggest the children having a relationship with the other parent is within their contemplation and supported by them.
The mother’s proposal however put the decision-making for the children spending time with their father in the hands of a therapist conducting reunification therapy.
The father’s proposal involved the children being “prepared” by a therapist or therapists over a three month period during which they continued to live with their mother to leave her care and move into his household, notwithstanding the limited time they had spent in his care for many years.
The orders proposed by the father set out in Exhibit “F7” tendered to the Court on 6 April 2021 made no provision for the children to spend time with the mother once they moved into his care.
In addition, although reference was made by the father’s counsel on several occasions in closing submissions to any trauma experienced by the children in moving into the father’s care being only short-term and resulting in a situation where they had the opportunity to have both parents in their lives on a long-term basis, there were no specific proposals put to the Court for time spending.
The acrimony between the parties in this matter was palpable in the courtroom.
Both parents exhibited limited capacity and/or desire in their evidence-in-chief or answers in cross-examination to acknowledge their respective roles in creating the circumstance of the children spending little time with their father for several years.
The mother did acknowledge that her conduct and behaviour prior to the 2018 trial, as remarked upon at length by Berman J in his judgment of 27 April 2018, was “not my best”.
In paragraphs 125 and 126 of his Honour’s judgment of 27 April 2018 he said:
125.The mother's evidence was unimpressive. I accept that she is weary of the litigation and is psychologically fragile. She was forthright in her opposition to the children spending time with the father and was unable to recognise that there was any advantage to the children spending time with him.
126.The Court can have no confidence that the mother will promote the children's relationship with the father or provide an environment other than one of open hostility towards him.

When asked why she had a clearer understanding of her role and responsibility to encourage the children to spend time with their father after the 2018 trial, she said that she was “far better mentally” and had worked very hard such that she now understood her behaviour prior to the previous trial had not been her best. She called her psychiatrist Dr BB to give evidence as to this issue.
The father consistently presented as frustrated and angry which at some level was understandable. He conceded however that the mother had tried to make suggestions to him about seeing the children’s medical practitioners and/or counsellors, tried to organise time spending outside of the orders and often proposed that he undertake counselling with the children.
His evidence and presentation in the witness box indicated a resistance to following any suggestions made by the mother to improve or repair the relationship between he and the children.
I am not satisfied that at the time of trial either parent had a genuine wish for the children to spend any significant time with the other parent.
I do find however that subsequent to the 2018 trial the mother had sought and attended regular therapy with a psychiatrist and had at least begun to take steps to modify her determined opposition to the children having any relationship with the father at all, as was clearly the case during the 2018 trial.
I find that she was more cognisant of the benefit in the children having some level of relationship with their father and was genuinely pursuing therapy to assist her to manage her reactions to such a possibility.
In McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at [118] and [119] the Full Court of the Family Court said, after a discussion as to a definition of the word meaningful, said:
118. It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (‘the present relationship approach’);
(b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (‘the presumption approach’); and
(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (‘the prospective approach’).
119.We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is ‘the prospective approach’ although, depending upon factual circumstances, the present relationship approach may also be relevant…
In [121] of the same judgment their Honours referred to and accepted as appropriate “the interpretation of ‘meaningful relationship’ set out by Brown J in Mazsorski”,[8] and went on to say in [122]:
In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
[8] Mazsorski & Albright (2007) 37 FamLR 518 (“Mazsorski”).
In Mazsorski which had been determined some to years prior to McCall & Clark, Brown J had expressed the following at [26] when considering the concept of a meaningful relationship, namely:
What these definitions convey is that ‘meaningful’, when used in the context of ‘meaningful relationship’, is synonymous with ‘significant’ which, in turn, is generally used as a synonym for ‘important’ or ‘of consequence’. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one…
This is a matter where this factor will require careful consideration.
Litigation has been ongoing for most of the lives of these three children. All three children have suffered the consequences of their parents’ dysfunctional relationship which, eleven years after the commencement of proceedings, had not improved.
The question of whether B, C or D will derive positive benefit from this Court attempting to craft orders to foster their relationship with the father is a matter to consider later in these reasons following a consideration of the other relevant factors.
s 60CC(2)(b) – The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
It was the position of the father as expressed in his counsel’s closing submissions that all three children are at risk in the care of the mother. It was his position that the children had been exposed to and suffered psychological harm from exposure to family violence arising from the mother’s behaviour throughout the proceedings in preventing them from having a meaningful relationship with him.
It was further submitted that B was suffering from psychological harm arising from the erroneous belief instilled in her by her mother that the father was harmful to her and further, that B was at risk of psychological harm in the care of the mother as evidenced by the mother failing to wait with B in hospital emergency when she was exhibiting serious mental health and self-harm thoughts on 17 March 2021, the week before the trial. In addition the mother had not arranged for B to get urgent psychiatric help.
It was submitted that C was at risk of harm in the care of the mother evidenced by the mother determining to give C medication other than in accordance with medical advice.
It was submitted that the children would continue to be exposed to psychological harm by the mother not genuinely supporting the children having a meaningful relationship with the father and that such harm was already evident in the children’s feelings of low self-worth, poor identity of self, attachment problems and B and C’s particular problems at school.
It was the father’s position that if the children do not have an opportunity to have him in their lives in a meaningful way they will continue to suffer from psychological harm including, in the longer-term, the possibility that they will turn against their mother and then reject both parents.
It was his case that a change in the children’s care arrangements such that he became their primary caregiver would give him the opportunity to obtain the therapy required by the children to assist their psychological development in the future, and that any order short of a change in the children’s primary care arrangements would inevitably mean that the children had no future relationship with him.
It was the mother’s position that the children were not at unacceptable risk in her care, particularly in circumstances where the only issue in respect of which she could be criticised was when she had given C medication other than in accordance with his medical practitioner’s direction. She conceded this was a “lapse”.
It was submitted by her counsel that it was not “a plank” of her case to press allegations of sexual abuse of B in particular against the father. Further, she acknowledged that if she continued to do so it would be an impediment to the success of reunification therapy between the children and the father which was a course she sincerely wanted to “move forward”.
It was the mother’s position that she was genuinely in support of and open to the concept of a relationship between the children and their father. It was submitted that she had been the primary caregiver of all three children for all of their lives, that she was doing the best that she could in dealing with children suffering high anxiety and depression in the case of B and C’s myriad physical and psychological problems, and that the children would be at risk of their needs not being met in the father’s care as evidenced by his lack of knowledge of their complex needs and his lack of preparedness to tell the Court how he would cope with those needs in the event the children lived with him.
I am unable to find on the evidence that the children are at risk in the care of the mother. There is no doubt that they are aware of her high levels of anxiety and that her symptoms are exacerbated when the subject of their father arises. Nevertheless, I find the children consider their needs are being met in the care of their mother, they feel safe and secure in her care and she attends adequately to the various medical treatments and therapies that the children require from time to time.
I am also satisfied that she is aware of the difficulties experienced particularly by B and C at school and maintains appropriate contact with their schools and teachers from time to time to assist in addressing the children’s educational concerns.
I find that the mother’s attitude to the children having a relationship with the father in the past has been unhelpful as were the steps she took in relation to the issues of “special cuddles” raised by B. Nevertheless, I am not satisfied that the children’s opposition to maintaining a meaningful relationship with their father can be seen to be solely as a result of their mother’s attitudes and conduct. I accept there is a risk that if the children remain in the care of the mother they will continue to resist spending time with their father.
I accept the evidence of both Ms AA and Ms W regarding the negative impact that the lack of a relationship with one parent or the other can have on the psychological wellbeing of children and that such impact may continue throughout their lives. Nevertheless, I am satisfied that the children have suffered considerable trauma already as a result of being the subject of litigation between parents in high conflict for almost all of their lives.
I am also concerned that the father’s sceptical view as to the medical and psychological treatment facilitated for the children by the mother over many years together with what I consider to be his naive view regarding the transition of the children from the mother’s care to his care potentially places the children at risk of psychological harm arising from a lack of comprehension on the part of the father of the children’s psychological needs.
Additional considerations
s 60CC(3)(a) – Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
A family report was prepared by Family Consultant Ms AA. It was dated 23 September 2020 and followed upon interviews Ms AA had with each of the parties as well as discussions with each of the children, and observations of both parties with the children, their respective partners and the father’s child L on 9 September 2020.
Ms AA’s discussions with the children were reported by her in paragraphs 72 to 95 inclusive. In paragraphs 72 to 80 inclusive she noted the following matters arising from her discussions with B:
·she presented as a polite, mature and articulate young person;
·she was deeply depressed and emotionally burdened;
·she described her mother to be “such a supportive person” and gave examples of the care provided to her and the other children by their mother;
·she told Ms AA “I’ve been going through a rough patch with depression and she’s just Mum to me and my best friend”;
·she described her relationship with her father to be “bad” and told Ms AA “lots has happened. It’s not been a quick decision, it’s been going on for years”;
·she said people often thought her mother influenced her way of thinking but said “I was always the adult kid having to protect my brother and sister so I know my own voice; it’s my choice”;
·she described her father to be manipulative and a liar;
·she had known her step-father for five years and considered him to be more of a father to her than her own father;
·she said her father lied about everything;
·she indicated a general sense of frustration and anger that her father tended to avoid answering her “serious questions” or answered by making a joke “because he thinks I’m a kid”;
·she said two years had passed since she spent any meaningful time with her father in spite of her mother’s encouragement and support to do so;
·she said her mother had and “definitely would” in the future, support her to spend time with her father if she wished to do so;
·she said her mother always told her “you have to put in the effort to see your dad because he’s your dad in the end of the day”;
·she described her mother saying that she really needed “to give this a go” at the time of every visit;
·she said her mother had said in the past that it was always up to the children if they wanted to live with her or their father;
·she described being scared of her father and reported “seeing his face makes me feel sick and unnerved”;
·she described becoming increasingly distressed upon her father’s arrival at a recent handover at a handover location on Father’s Day and that she had hid under the seat crying;
·she described experiencing a panic attack after hearing her father and step-father engage in verbal conflict and ended up crying and screaming;
·she reported her father had told her she was overreacting and described feeling like she was going to pass out and begging her step-father to drive her away when she heard her father say how much he loved her in a “bittersweet tone”;
·she told Ms AA that during this incident the twins were in the car and that D was crying;
·she further described the father trying to push D into the restaurant against her will while she was crying;
·she told Ms AA she had been diagnosed with Medical Condition R “from growing up at his house” and described her experiences as “not pleasant”;
·she described having to share a room with D and C and sharing a second-hand single bed mattress without a sheet or pillow and only a blanket provided to her father by her mother;
·she stated that her father had manipulated her mother on a number of occasions;
·she described she, C and D witnessing their parents engage in fights all the time including “really nasty” fights;
·she told Ms AA that in the future she knew she needed to reengage in school and that despite her depression this was her aim next term;
·with respect to spending time with her father she told Ms AA “I don’t even want to talk to him on the phone”; and
·she said she wanted no face to face contact with her father in the future and refused to spend time with him as part of the assessment process.
In paragraphs 81 to 89 of the report Ms AA discussed issues arising from her conversation with C including that:
·he presented as a friendly and polite young person;
·he was clear in articulating his thoughts and feelings;
·he appeared genuinely sad when speaking of his experiences with his father;
·he was clear in his resolve not to want to maintain time spending together;
·he referred to his father both as “[Mr Bane]” and “Dad”;
·he spoke positively of experiences in his mother’s care and reported feeling safe;
·he told Ms AA “I don’t feel safe around him, he hasn’t treated me right, I don’t like his house” when asked about time spent in his father’s care;
·he said he did not like his dad and “he’s mean and calls me [C] (sic)”;
·he reported that he has “[a number of physical and psychological conditions]”;
·he said his mother understood his needs much better than his father;
·he described not liking his father and said he used to leave him in the rain and thunder when he was naughty and he (the father) had an imaginary spot C had to sit in and C did not like it;
·he said his father told him he had no choice but to spend time with him but that he wanted it to be his choice;
·he spontaneously stated “my step-dad is much more nicer than my real dad”;
·in relation to the Father’s Day handover he described it as “bad” and reported that D was crying and asking the father to “leave us alone, but he wasn’t listening”;
·he began to cry while speaking to Ms AA about that matter and said “I was saying I don’t want to see him”;
·he said he was trying to comfort D “but she didn’t want to be touched by me”
·he stated B has “anxiety and a bit of depression so she didn’t want to come out”;
·he reported his step-father saying that they could go inside the restaurant if they wanted to “but we didn’t want to”;
·he reported his father telling B and D to “stop overreacting” and that B begged Mr K to drive away;
·he told Ms AA he did not want to see his father and he did not want telephone communication to recommence;
·he said he did not want his father attending school because it caused him stress; and
·when he was told he needed to spend time with his father later that morning as part of the assessment process he became “clearly distressed, appeared scared and became increasingly teary.”
Issues arising from her discussion with D were set out in paragraphs 90 to 95 of the report including that:
·she presented as a polite, articulate, bright but somewhat sad and vulnerable 11 year old girl;
·she appeared burdened with distress associated with her time spending with her father;
·she appeared genuine in her desire for this not to continue;
·she reported with a smile that time in her mother’s care was “nice”;
·she explained sometimes becoming angry at her mother “but she’s very calm and supportive”;
·she described her step-father, Mr K, knowing how to make the children happy;
·she appeared sad and teary when asked about time in her father’ care;
·she said her father treated her like a child of younger years and “doesn’t care about our feelings”;
·she described him making her watch a MA15+ movie when she was 7 or 8 years old and becoming scared;
·with reference to the Father’s Day handover she reported her father not caring that she was crying and didn’t want to go with him;
·she reported that when she saw her father she felt scared and anxious and sometimes experienced nightmares of him chasing her;
·in relation to a question as to positive memories of her father, D recalled a boat trip some four years previously which she enjoyed;
·she said that in future she did not want to see her father, did not want to speak to him on the telephone and wanted “nothing” from him;
·she reported her mother always supporting her to see her father in the past and being confident her mother would do the same in the future should she ask to see him;
·she became teary when informed that she would need to see her father as part of the assessment process;
·she reported feeling anxious and not wanting to see him; and
·she agreed after some discussion with Ms AA that she would try her hardest to see him.

The observations of interaction were reported by Ms AA in paragraphs 96 to 103. It was noted that B refused to spend any time with her father and that upon his arrival her anxiety appeared to escalate to the point of seeming panicked.
D was reported as beginning to cry and telling her mother that she did not want to see her father but then saying she “felt bad for him, his partner and [L] if she did not agree to see them after coming ‘all the way’ to see her.”
Ms AA reported the mother and Mr K to appear encouraging of the children’s time with their father, including the mother saying “you are safe here, it’s okay” to all three of the children when they expressed a preference not to see him.
She reported that the mother, Mr K and she all encouraged C and D to remain and they did so, but were reported as appearing “quietly distressed, unhappy and avoidant of contact” when the father arrived with his wife and their child L.
She described the father as:
·appearing “overly jovial” and interacting with the children in a “somewhat elevated tone” consistent with someone speaking to infant and pre-school children;
·engaging in a shared game with the children but C and D appearing to be discomforted and declining to accept food and drink from him; and
·asking questions of the children but not giving them time to respond.
She described the children at best appearing to smile once at a joke made by their father and at worst appearing generally anxious and avoidant when the father sat on the floor and proceeded to read to them out of a book he had gifted to them.
The observation took place over a twenty minute period and Ms AA reported that C remained “non-verbal other than saying ‘no thank you’ to the food offered”. She described D being only slightly more verbal, appearing to respond out of respect, and both children quietly and nervously saying goodbye to their father at the end of the interaction. She described them as appearing eager to leave the room.
In paragraph 103 Ms AA said as follows:
Whilst walking the children back to their mother, [C] stated multiple times in a matter of fact manner “I didn’t like it, I didn’t like it”. [D] said, “I felt really uncomfortable”. [C] added in a sad tone “me too”. [D] then burst into tears and ran to her mother seeking comfort in the form of an affectionate hug.
I find that all three children were clear in their views as expressed and demonstrated to Ms AA, namely that they are uncomfortable in the care of their father and do not wish to spend time with him.
Little seems to have changed in that regard since the trial in 2018.
In paragraphs 265 to 268 inclusive of his reasons delivered on 27 April 2018, his Honour Justice Berman said as follows:
265.The views of the children, but in particular [B] and [C] could be reasonably interpreted as them not wishing to see or engage with their father. There is no other reasonable interpretation following their presentation to the family consultant. The issue in this case is not ascertaining the wishes of the children but rather to determine the weight that should be given to those wishes.
266.The family consultant did not consider that the matters raised by the children were reasonable or were based in reality.
267.Many years of litigation and the reasonable finding that the children have been exposed to a negative environment in terms of how they should perceive and consider their father promotes a finding that I should give the wishes of the children little or no weight.
268.The residual concern is that notwithstanding [B’s] observations of her father are without substance, nonetheless a child soon to be 12 years of age may well act in direct opposition to orders made and thereby make compliance difficult. A reasonable example is the direct interference by [B] in a handover between [D] and [C] and the father at school. Whether prompted or promoted by the mother, [B] set about to actively dissuade her siblings from going with the father. It is also possible that [B] may well continue to disrupt any attempts at a restoration of a relationship with the father.
At the time of the previous trial in March 2018 B was aged 11.5 years and C and D were 9 years and 3 months old.
When the matter came before me in March 2021 B was aged 14.5 years and C and D were 12 years and 3 months old.
They had been the subject of litigation for over eleven years.
Ms AA described all three children as polite and B and D as articulate.
B was described as deeply depressed and emotionally burdened. C was described as appearing genuinely sad when speaking of his experiences with his father. D was described as sad and vulnerable and burdened with distress associated with her time spending with her father.
B was described as familiar with expressing her thoughts and feelings. C was described as clear in articulating his thoughts and feelings. D was described as genuine in her desire for time spending with her father not to continue.
In paragraph 108 of her report Ms AA said as follows:
The children’s explanation as to what led to their negative views of their father (to the point of seeking no time in his care) was somewhat limited. It could not, however, be dismissed. It remained in question on what basis the children’s narrative was established. For example, to what degree it was factual, to what degree it was a result of poor parenting by the father, from direct manipulation by the mother, or otherwise. Either way, what appeared evident, was the children’s genuine discomfort in their father’s presence and their desire to be free from the burden of future time spending with him.
Orders were made for the children to spend time with their father on a regular basis following upon the trial in early 2018. The orders were not in accordance with the wishes of the children as expressed to the Family Consultant at that time. His Honour clearly expressed his reasons for taking that approach.
The children, in particular B and C, continue to experience challenges in terms of their mental health. The orders of April 2018 have not been complied with. The children have mostly refused to spend time with their father since that time. That evidence is not in dispute.
I find on the evidence of Ms AA that all three children continue to be highly resistant to spending time with their father. She did not consider the children presented as being “coached” by the mother.
They are children but they are not young children. B and C in particular suffer significant psychological challenges. All three children have been saying the same thing about their reluctance to spend time with their father to various experts over a prolonged period of time.
I am concerned that further orders that do not give serious weight to the children’s wishes may have a deleterious impact on the psychological wellbeing of all three of the children. B, C and D know as a result of their interview with Ms AA that the Court will be aware of their views. I am concerned that if the Court fails to give weight to those views it may engender a belief on the part of the children that their views and feelings are not worthy of respect.
I am satisfied that the reasons behind all three children exhibiting such sadness and distress when discussing their views about their father is a matter of genuine concern. Nevertheless, I consider the wishes of the children to be an important factor in this matter.
s 60CC(3)(b) – The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child).
As at the time of trial the children had little relationship at all with their father. There was some limited but quite regular telephone communication that was apparently conducted in polite and respectful terms. Hardly any time however had been spent with the father for several years leading up to trial, and efforts made by the father in person to persuade the children to go into his care at handovers was invariably unsuccessful.
This was not helped by what I find to be the children’s clear understanding, as a result of what their mother had told them, that they had a choice whether or not to go with their father. It was the father’s evidence that he told the children on numerous occasions that they did not have a choice and that a decision had been made as to what time they would spend with him. He was quite correct in that regard.
There was almost no evidence adduced by the father in his trial affidavit as to the nature of the relationship between he and the children. I accept this would have been difficult for him when the children had spent so very little time with him over a period of approximately five years. The children did not describe a positive relationship with the father or indeed any affection towards him.
B and C have complex psychological needs. C also has additional complex physical needs. The mother has attended to the needs of all three children without any input from the father for a significant period of their lives.
All three children reported to Ms AA a positive relationship with their mother in which they felt secure and supported. In addition, as reported by Ms AA in paragraph 96 of her family report, all three children appeared settled in the care of the mother and her partner Mr K and generally happy.
By contrast, B refused to participate in observed interaction with her father, and upon his arrival in the observation room with his wife and their child L, Ms AA reported in paragraph 98 to C and D “appearing quietly distressed, unhappy and avoidant of contact.”
In paragraphs 99 to 102 the children’s demeanour in the presence of their father as described therein did not observably improve, and both children were described in paragraph 103 as expressing that they “didn’t like it”, that they felt “really uncomfortable” and D then was reported to burst into tears and run to her mother “seeking comfort in the form of an affectionate hug”.
The mother detailed the children’s ongoing health issues in paragraphs 103 to 113 of her trial affidavit filed 2 November 2020. The effect of her evidence was that the father has never attempted to contact or meet with any of the children’s health professionals notwithstanding her request that he do so.
The father’s trial affidavit made little reference to the children’s special needs. In his discussions with Ms AA he reported that it was his position “that [B’s] depression and anxiety was ‘absolutely’ a result of [Ms Thompson’s’ poor management.”
In paragraph 56 of her report Ms AA stated as follows:
[Mr Bane] argued that [B’s] depression and anxiety was ‘absolutely’ a result of [Ms Thompson’s] poor management. He added that she was a ‘big cause’ of the children’s depression given she forced them to reject a relationship with him. In particular, forcing [B] to approach him and tell him that she did not want to spend time with him. He stated that the children’s need to ‘conform to her campaign’ and their control by the mother was the cause of their poor mental health. He added that he was certain they loved him and that should they live with him they would be ‘far more relaxed’.
In cross-examination the father said he had contacted C’s psychologist, Ms FF, on 9 February 2021. He also said he had contacted Ms DD who had been B’s psychologist at a mental health clinic in 2020 to ask if he could join in with her appointments but was advised that she had left the agency and in those circumstances had asked for the name of the person taking over.
He further said he had contacted Dr GG who provides treatment for C’s physical medical condition at HH Hospital and had been informed that he would be delighted if the father attended at C’s appointments.
He said he had attempted to contact Dr JJ at “KK Centre” on approximately 9 February 2021 but the doctor had been unavailable to speak with him and in those circumstances he had sent an email to “KK Centre” but had not received a reply.
In relation to his evidence that he had seen Ms V on three or four occasions for advice with respect to handovers and the children spending overnight time with him, he agreed that had occurred in circumstances where he spoke with her on some four or five occasions over a period of twelve months in 2018.
When it was put to him in cross-examination by the mother’s counsel that he had not spoken to any of the children’s general practitioners in the three years since the 2018 trial, he replied that he could not speak with the doctors and they would not provide reports as the mother had not given them express authority to do so. He denied that the mother had kept him up to date and invited him to make contact with the children’s doctors.
I am satisfied that the father was content to leave the responsibility for the children’s special needs to the mother. It was also clear from the report of Ms AA in paragraph 56 to which I have referred and the father’s evidence-in-chief and in cross-examination that he considers the mother to be the root cause of any psychological problems experienced by the children.
The children described their relationship with their mother to Ms AA. B gave a detailed description of what the mother provided towards the children’s care and referred to the support she gained from her mother as described in paragraph 73 of Ms AA’s report.
C reported his feelings about his mother’s care, reported by Ms AA in paragraph 82 of her report. She described his reported experiences of his mother’s care as positive, and to feeling safe in her care. D likewise discussed her experiences in her mother’s care as described in paragraph 91 of Ms AA’s report.
The effect of all three children’s comments to Ms AA as reported by her is that they have a close and loving relationship with their mother and that it is a relationship on which they depend for their physical and emotional care and in which their needs are met.
I find that as at the time of trial the children had experienced little relationship with their father over a period of some years, and that their physical and emotional dependence rested on their mother.
I am further satisfied, particularly as a result of my observations of the demeanour of the father in the witness box, that he is more rigid in his thinking than is the mother. From their descriptions to Ms AA it is likely the children find their interactions with him to be less emotionally warm than those with their mother.
s 60CC(3)(c) – The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child;
(ii) to spend time with the child; and
(iii) to communicate with the child.
There was no evidence adduced by either party about decisions needing to be made about major long-term issues in relation to any of the children since the trial in 2018.
The mother did however make unilateral decisions to move all three children’s schools. This appeared to be on practical grounds arising from the necessity to move residence with the children.
She deposed in paragraph 73 of her affidavit filed 16 November 2020 that she had advised the father that C and D would be moving to X School in January 2019 as a result of a change of her residence, and that he had not objected to that course.
Following upon a very difficult personal time for B at LL School in 2020, she ultimately attended an open-access college for some of that year. In 2021 she commenced attending at MM School.
I am satisfied that those decisions were made by the mother and that the father did not have an opportunity to participate in making the decisions about the children’s schools. It was not however an issue of which he complained in his evidence.
I am satisfied that subsequent to the orders of April 2018, the father has for the most part sought to spend time with the children in accordance with the orders of Berman J, save that from approximately January to July of 2019 it was his evidence he did not spend time with the children as a result of a change in his employment arrangements.
In cross-examination he agreed that he had no flexibility to enable him to attend handovers in accordance with the orders of Berman J during that time. When it was put to him that he had not contacted the mother to make other arrangements he replied that she had already told him she was not going to cooperate with other arrangements.
The father agreed that as at 25 July 2019 he had not seen the children for six months or so, that handovers had not been able to be effected and that the mother had sent him an email. When it was put to him that she had offered counselling with the children in circumstances where they had not seen him for some time, he replied that was not the case and rather the mother wanted him to get psychological support and counselling. When it was put to him that he did not even consider agreeing to the counselling he said it was not a matter for the mother to say that he needed counselling.
When it was again put to him that the mother was saying in the email that he needed to have counselling with the children, he said that she was referring to counselling for him and he had found out over a number of years that counsellors were negative towards him. He said that he had found out that they had been advised he was a rapist, and that they had been told there had been domestic violence. He said in that context it made him really question how psychologists had acted with the children, meaning he questioned whether the children had been “triggered repeatedly”.
He was asked whether, where there had been no successful handovers and other than a couple of dinners no time spending for six months, he still did not agree to explore the counselling option. He conceded that to be the case. When it was further put to him that the mother wrote at that time because she wanted the children to have counselling with him, he replied that that was the mother’s whole issue, that it had been raised with Justice Berman and he had said reunification counselling was damaging.
What his Honour actually said in [74] of his judgment was:
The more vexing observation is of the lack of insight by the father that the process of further family therapy and the potential for subsequent litigation could be anything other than detrimental to the children.
I find that the father declined to take up the mother’s proposal of counselling sessions with the children but instead simply attempted to resume collecting the children from school on the appropriate Friday evenings after an absence of some six months. I find this was in the full knowledge that such handovers were almost certainly going to be unsuccessful.
I find that the father was not prepared to take steps with which he did not agree that may have assisted in facilitating the children spending time with him. Even if the father’s approach was informed by long-term frustration arising from the mother not complying with previous orders of the Court, it did not assist in any way to resolve what was by then an almost intractable stalemate between the parties which was having a severe impact on the psychological wellbeing of their three children.
I find his position was and is based on his firmly held belief that B and C’s psychological challenges have been directly caused by the mother. Whatever the basis of those clearly serious issues, the children would be best assisted by both parties working with their medical practitioners and allied health professionals rather than taking a determined and uninformed position.
I find that the view referred to above explains his reluctance, to the extent of refusal, to consult with the children’s medical practitioners and/or therapists and further, that the contact that he did make was made just prior to trial and was disingenuous.
I find that the father did take opportunities to communicate with the children and did so by way of telephone and also talking with C and D in particular on Fridays when handover would normally occur, with those conversations taking place at their school.

B, C and D have barely spent any time with their father for several years. They are opposed to spending time with him. That opposition is entrenched.
The father’s proposal that the children be informed that they are going to move to live with him, but will remain with their mother to have counselling for a period of three months to prepare them for that change is unrealistic.
He was unable to adduce evidence of a cogent course of action that would lead to the outcome he proposed.
It is understandable that the father is distressed that he does not have a depth of relationship with his children such that they are prepared to spend time with him. After this many years it would be impossible for the Court to ascertain exactly why the children hold the very firm views they do in relation to the concept of spending time with their father.
Bearing in mind the children were approximately 3 years old and 14 months old respectively when their parents ceased living together it is unlikely, particularly in the case of the twins, that their views have been informed to any significant extent by their own experience of their father’s conduct towards them. The same may not be able to be said with any certainty with respect to B who certainly would have been old enough to, at the very least, be aware of significant disharmony between her parents.
I find however that it is very likely that the mother’s level of stress and anxiety has increased over the years since separation, that the children are aware that those levels are heightened whenever the question of them spending time with or communicating with their father arises, and are even further heightened at any time where their parents come into contact with each other.
The children’s primary caregiver is, and effectively has been for all of their lives, their mother. There is no doubt they are acutely attuned to how she is feeling at any given time and to her extreme aversion to their father. They are dependent on her for their day to day care. They consider her to be a person they love, feel safe with and feel well cared for by. In the context of those matters their firm views are not surprising. It would be surprising if the children’s desire to protect their mother from hurt and trauma such that she is more emotionally and physically available to them would not account at some significant level for their attitudes and opposition towards their father.
There was no evidence adduced by the father, his witnesses or the Independent Children's Lawyer that would support findings of the Court other than that all three children would be traumatised by being separated from their mother or that such a change would be possible to effect taking into account the attitudes of the children and their respective ages.
Further, I am satisfied that if the Court were to make such an order as proposed by the father, the children would experience trauma well before their actual separation from their mother by being required to live with her for a period of three months after judgment in the full knowledge that at the end of that time they would be required to leave her care. I have already referred at length to the nature of the relationship of the children with each of their parents.
There was no evidence at trial that satisfied me that any of the children would either comply with an order to move into the care of the father, or emotionally and psychologically manage such move. I make that finding regardless of the basis of B’s mental health issues in particular.
The father’s evidence and demeanour were strongly indicative of a person unable and/or unprepared to countenance the merits of views other than his own. I find he would not have the capacity to take on the role of primary caregiver of B, C and D without serious psychological repercussions for the children.
He does not accept any reason for B’s mental health difficulties other than that they have been caused by the mother. He has not previously taken the opportunity to participate in any of her treatment nor has he sought information with respect to C’s very serious physical health disabilities. In addition, he is of the view that C’s anxiety arises from his mother.
I further find that he has not contemplated at any level the serious repercussions such a course would have for his wife and their young child L.
s 60CC(3)(e) – The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
This factor is not relevant to this matter.
s 60CC(3)(f) – The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs.
I find that the mother has the capacity to provide for the needs of B, C and D, notwithstanding B’s longstanding mental health challenges and C’s various complex needs. There is no doubt that B’s particular challenges and C’s fragile psychological state would not be assisted by the mother’s own serious mental health issues.
I am satisfied that for the most part the mother is managing B’s school challenges and ongoing mental health difficulties adequately and that she will continue to do so in the future.
I find she has sought appropriate assistance for B in terms of medical and therapeutic treatment, that she is appreciative of B’s particular needs and concerned to continue to assist B to achieve progress in her life and in her education to the best level she is able.
I likewise find that she has sought appropriate treatment for C, is aware of his challenges and seeks to provide the best level of care for him in all respects.
D faces less challenges than her siblings, but again I find the mother is providing a loving and secure home for D and will continue to do so.
Evidence from Ms CC, the Principal of LL School which was attended by B in 2020, and from Ms EE who was the class teacher for both C and D in 2019 and for C in 2020, evidenced regular communication between the mother and the children’s schools.
For the most part it indicated a cooperative relationship between the mother and the children’s teachers with respect to appropriate management of C’s mental health problems, bullying issues and willingness to attend at school and the impact on C at school of his physical and psychological conditions and the behaviours that were exhibited by him arising from those conditions.
The mother obtained a mental health care plan for B and arranged for her attendance upon Ms DD, Psychologist, who she saw on six occasions between 23 June 2020 and 14 September 2020, by which stage she said in evidence that she had noticed progress in B’s attitude towards the therapy and her presentation.
I was satisfied from the evidence of Ms EE that the mother actively participated in the school’s management of C’s behaviours.
I find that with the ongoing assistance of Dr BB the mother’s capacity to provide for all of the needs of the children will improve upon the conclusion of proceedings in this Court.
I find the mother is supported in her care of the children and the provision of their needs by her partner Mr K.
All three children have a close and loving relationship with Mr K, he is positively attached to the children and initially used his best endeavours to encourage the children to spend time with their father.
I find that as time progressed his effectiveness in that regard diminished as a result of him overtly adopting the position of the mother and indicating to the children that they had a choice of whether or not to attend with their father. Nevertheless, I find he is overall a supportive member of the mother’s household and that his presence is beneficial to the children.
As I have said previously the father adduced no evidence as to his capacity to provide for the needs of the children, noting that B and C have complex needs, the details of which are in the main unclear to the father and in respect of which he has not sought to acquaint himself with information from any of their treating medical practitioners, allied health professionals, or for the most part, from their schools.
The children have not lived with their father since they were about 3 years old in the case of B and 14 months old in the case of C and D. In addition they have spent very little time with him for several years.
Regardless of how that situation has arisen, the children’s reality is that they have no secure relationship with their father and I am not satisfied that he would have the capacity to provide for their needs.
The father’s household currently consists of he, his wife and L. Ms NN impressed as a thoughtful witness, supportive of Mr Bane and a loving mother to L. At the time of trial L was aged six and half years.
Ms NN was quite reasonably concerned about L being exposed to conflict and was uncertain about she and L attending with the father at any handovers in the future.
She agreed in cross-examination that L had spent little time with B, C and D since he was about 3 years of age, but said she thought if all three children came to live with them L would easily relate to them and it would “just be like normal – I don’t see a problem”.
It was her evidence that if the children came to live with them when they had not spent any overnight time in their father’s household for about four years she would be happy to try to give the children structure, love and routine and keep up their medical appointments including, if necessary, psychological help to assist the whole family with the transition.
Ms NN told the Independent Children's Lawyer in cross-examination that she could manage looking after four children as well as working, and when asked if she thought that introducing the three children to the household would have an impact on L, she replied that they would get help from a psychologist “I hope”.
Ms NN presented as an honest witness who was genuinely trying to assist her husband and who would use her best endeavours to assist B, C and D.
I find that she had a level of concern regarding the impact on L of being exposed to conflict at handovers, but in contrast seemed to think that introducing B, C and D as fulltime members of Mr Bane’s household notwithstanding the particular issues associated with B and C was achievable.
I find that notwithstanding her positive approach to the children coming to live in her household, she was aware of the very significant impact that would have, particularly on L, and at best was hopeful that things would work for her family. I am not satisfied on the evidence that there was any evidence available to the Court that would support that optimism.
Her evidence to a significant extent was reflective of that of the father, namely a naive view that once the children were in their care the problems that they have experienced whilst living with their mother would somehow either miraculously dissipate or become manageable in circumstances where they were attributable to the mother’s attitudes and mental health and/or inappropriate medication in the case of B and C.
I find the father would be capable of providing for D’s intellectual needs, but at the very least with C would be facing what might be described as a “steep learning curve” in coming to understand the extent of the physiological and psychological challenges faced by C on a day to day basis and managing them in the context of his education.
I am not satisfied that the father would have the capacity to manage B’s intellectual needs associated with progressing her education which are long-standing, complex and not accepted by the father as valid.
I have no confidence in the ability of the father to provide for the emotional needs of any of B, C or D without involvement in long and complex family therapy which he has historically resisted.
As I have said previously herein, I consider his proposal that the children live with the mother for three months after the delivery of judgment during which time he would commence to spend limited time with them, attend upon family therapy with them, and that they then transition seamlessly into his care to be, on the evidence, unrealistic and not attuned to the emotional needs of the children.
s 60CC(3)(g) – The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
There is a benefit to most children in having a meaningful relationship with both of their parents such that they are able to share the lifestyle and background of each of their parents, their parents’ extended families and their friends. Ms W told the Court that also assists children to have a realistic understanding of both parents to help them make a sense of who they are.
Such a relationship would mean children could spend time in each parent’s household, participate in social, sporting and other events with both sides of their family and have the opportunity to genuinely feel “part” of both families.
In the circumstances of this case however I do not consider such a situation is possible to achieve at this time. The relationship between the parties is one of high conflict.
The father’s evidence both in-chief and in cross-examination and his demeanour in court illustrated not only a high level of animosity towards the mother but also a level of contempt.
The mother did not present either in words or by demeanour as contemptuous of the father, but rather as having an intense dislike of him and holding him to be responsible to a significant degree for her ongoing mental health difficulties.
I do not consider it possible for children to move between households dominated by such intense conflict towards the other of them without negative impact on their own emotional wellbeing.
Put simply, without intense therapy being undertaken by the father as well as the mother to attempt to mitigate the animosity they each feel towards the other of them, such that they can genuinely support the children having a meaningful relationship with the other parent, I find that the children in this case would unfortunately not obtain the benefit which they could ordinarily expect from regular time with each parent.
I find that such therapy could only have a successful outcome if embarked upon voluntarily and with genuine goodwill, and not against a canvas of litigation as a “hoop to be jumped”.
s 60CC(3)(h) – If the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right.
This factor is not relevant to this matter.
s 60CC(3)(i) – The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
I consider I have addressed these issues in my consideration of the earlier factors.
s 60CC(3)(j) – Any family violence involving the child or a member of the child’s family.
I am satisfied that the mother holds a clear belief that the father perpetrated domestic violence upon her during the period of their fairly short relationship between 2005 and 2009. These are not matters raised by the mother in earlier proceedings, including during significant proceedings between the parties in 2018.
Nevertheless, they are matters that the mother tells the Court she has commenced addressing in therapy with Dr BB to the extent that Dr BB has diagnosed her as suffering from Medical Condition R as a result of the family violence during the relationship.
It was Dr BB’s evidence that she considers the mother to be truthful and consistent in the matters that she has raised with her over a lengthy and regular period of treatment, and that she does not consider the fact the mother has not raised these issues previously as unusual in the context of a person suffering Medical Condition R.
I do not consider it necessary in the context of this matter to determine whether the father was violent to the mother during the period of the parties’ relationship.
There is no doubt the mother suffered mental health difficulties prior to her relationship with the father. Nevertheless, it is the mother’s evidence that her anxiety had been managed with medication and she was functioning well at the time the relationship commenced.
Dr BB confirmed that with the mother’s mental health history and that of her family she was likely to be more vulnerable to suffering severe anxiety, depression and Medical Condition R.
I considered the mother to be a truthful witness. I accept that it is likely her level of extreme anxiety colours her perception of matters and events particularly concerning the relationship between the children and their father. Nevertheless, I accept that she is genuinely supportive of the children entering into therapy to attempt to reconcile them with their father and develop a relationship with him. I am not however of the view that such therapy should be undertaken against a backdrop of court proceedings.
I find that the mother has progressed in her own thinking and conduct such that she would be amenable to the children attending upon a therapist to explore avenues of reconciliation with their father and, at the discretion of the therapist, for the father to then be involved in that process.
I find that the mother would not intentionally attempt to frustrate that process although she would no doubt find it challenging, particularly if the children or any of them continued to resist progression of their relationship with their father.
I find however that could only occur outside of court orders where the father voluntarily undertook personal counselling as to the issue of conflict and participated to the level that was appropriate for the children in that process.
Needless to say, if reunification counselling was to be embarked upon not only would the parties need to participate to the level required of them by the expert involved, but they would also need to accept advice as to the success or otherwise of the process and in particular the impact of the process on the children.
The mother believes there was family violence. The father denies there was any family violence.
This matter is about whether children spend time with and have a relationship with their father.
The relationship between the parents broke down over twelve years ago.
I find that if family violence as described by the mother did occur, it would not prevent a meaningful relationship now being shared between the children and their father. I find that the mother has come, perhaps belatedly, to the same conclusion.
s 60CC(3)(k) – If a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)        the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)      any findings made by the court in, or in proceedings for, the order;
(v)       any other relevant matter.
This factor is not relevant to this matter.
s 60CC(3)(l) – Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
It is to be hoped that the orders the Court makes will be accepted by the parties such that further litigation will not be embarked upon and, to the extent possible, the children will have the opportunity to spend the remainder of their years prior to attaining adulthood free from being the subject of dispute between their parents in this Court, with all of the imposts on their childhood that process engenders.

Both parties have seen the Court as the answer to their intractable dispute for many years, with each experiencing difficulty in recognising their contribution to their children’s distress.
I find, particularly taking into account the evidence of Dr BB, that the mother has embarked upon a course of therapy from September 2018 that has assisted her in understanding her mental health issues, accepting help in managing those issues and recognising how she can better assist the children.
I find that the father would be greatly assisted by undertaking personal counselling to gain some insight into his contribution to this distressing family dynamic and how his contribution to its resolution can be improved upon.
I am satisfied if both parents follow that course the Court would have no further role in the lives of this family.
s 60CC(3)(m) – Any other fact or circumstance that the court thinks is relevant.
There are no other facts or circumstances that the Court thinks are relevant in determining the parties’ competing parenting applications.
CONCLUSION
In accordance with these reasons I am unable to find that it will be to the benefit of B, C or D to make orders as sought by the father for the children to move from the primary care of the mother to his primary care, following upon a three month period directed to the children adjusting to that change.
I find that such a course of action would place the children at significant risk of serious psychological harm in circumstances where they are closely emotionally bound to their mother, continue to resist spending any time with their father, and where I have found that the actions and attitudes of both parents have contributed to that situation over a significant period of time.
I am satisfied that the children are content to maintain telephone communication with their father and his evidence suggested that he was now prepared to consider that communication could include other forms of electronic communication such as FaceTime or Skype calls. I find that it is in the best interests of the children that this be regular communication at fixed times and not subject to the wishes of any of the children.
Although the orders sought by the father included an order for equal shared parental responsibility, I am mindful that the mother has had sole parental responsibility for the children for many years and that the evidence of both parties was reflective of a continuing inability on the part of both of them to share any real level of decision-making. I am satisfied however that a portion of paragraph 4 of his Honour’s order of 27 April 2018 specifying information the mother should provide to the father with respect to the long-term care and welfare of the children continues to be appropriate.
As I said earlier in these proceedings, very little had changed in terms of relevant facts before the Court since the trial before his Honour Justice Berman in 2018. The major difference related to the efforts made by the mother to address her mental health issues since that trial, and the recognition by her that it was necessary to attempt to promote a relationship between the children and their father.
Those efforts have been unsuccessful, but I have referred at length in these reasons to my concerns regarding the role the father has played in the children forming the decisions they have over many years, and his inability to accept any responsibility in that regard. In addition, I have referred to my concerns as to about his insight into the children’s emotional needs and wellbeing and their need to be relieved of the impact of litigation and ongoing conflict between their parents.
I have found that all three children are now of an age where their wishes must be given serious consideration and respect and that failure on the part of the Court to do so will result in the children suffering further emotional distress.
It is to be hoped that these orders end litigation between the parties in circumstances where it has been ongoing for some eleven years.
That of itself may relieve the parties and the children from its associated stress and pressure, and enable them to eventually work towards achieving an outcome outside of the Court and its processes that provides the children with an opportunity to benefit from a meaningful relationship with both of their parents as they move towards adulthood.
I intend to make as few orders as possible such that the parenting issues that need to be clearly defined are addressed but in such a way that the capacity for dispute to arise between the parties in the future is limited.
For those reasons I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding three hundred and thirty-one (331) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead.
Associate:
Dated: 8 March 2022

File number(s):	ADC 593 of 2010
Judgment of:	MEAD J
Date of judgment:	8 March 2022
Catchwords:	FAMILY LAW – CHILDREN – With whom the children live and spend time – Best interests of the children – Where the mother seeks sole parental responsibility and time spending with the father subject to reunification therapy requirements – Where the father seeks equal shared parental responsibility and the children to live with him – Where litigation commenced in 2010 – Where the children at time of trial were aged 14 and 12 – Where there was a previous trial in 2018 – Where the children have spent little time with the father since 2014 – Where the children require psychological support –Where the father was found to be lacking in knowledge of the children’s medical and therapeutic needs – Where the father lacks insight into his behaviour – Where the mother suffers from anxiety and attributes symptoms of “[Medical Condition R]” to the father’s conduct towards her during the relationship – Where that issue has not previously been raised by the mother – Where the mother has previously been found to have deliberately obstructed the children spending time with the father – Where since the last trial the mother has sought significant psychiatric assistance – Where the mother’s attitudes to the children spending time with the father have ameliorated – Where there is a high level of acrimony between the parties – Where the Court places significant weight on the children’s views – Where the children remain opposed to spending time with the father – Where the children are to live with the mother – Where there is no order for the children to spend time with the father – Where orders made for electronic communication.
Legislation:	Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5)
Cases cited:	McCall & Clark (2009) FLC 93-405 Mazsorski & Albright (2007) 37 FamLR 518
Division:	Division 1 First Instance
Number of paragraphs:	331
Date of hearing:	22-26 March 2021 and 6-7 April 2021
Place:	Adelaide
Counsel for the Applicant:	Ms Pangallo
Solicitor for the Applicant:	Adelaide Family Lawyers
Counsel for the Respondent:	Ms Ross
Solicitor for the Respondent:	Daniel John Lawyers
The Independent Children's Lawyer:	Ms Olsson
Solicitor for the Independent Children's Lawyer:	Silkwoods

ADC 593 of 2010
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS THOMPSON Applicant
AND:	MR BANE Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	MEAD J
DATE OF ORDER:	8 MARCH 2022