Umaru & Maletta (No 2) - [2023] FedCFamC2F 478

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Umaru & Maletta (No 2) [2023] FedCFamC2F 478

File number: MLC 5969 of 2018

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 4 May 2023

Catchwords: FAMILY LAW – final parenting orders – children’s living arrangements – whether children should live with parents week about or alternate weekends – whether the court should order where the children go to secondary school – whether orders should be made as to the children’s extracurricular activities – whether there should be an appointment of a parenting coordinator – which party should hold the children’s passports – long standing equal time arrangement – change to existing arrangement in the children’s best interests – secondary school next door to children’s current primary school most appropriate – whether Christmas day should be shared or alternate years.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 13C, 13D, 60CA, 60CC, 61DA, 65DAA, 65DAC

Cases cited:
Fox v Percy (2003) 214 CLR 118

Licata & Buxton [2019] FCCA 3181

Rice & Asplund (1979) FLC 90-725

Division: Division 2 Family Law

Number of paragraphs: 212

Date of last submission/s: 29 September 2022

Date of hearing: 1, 2, 15 & 16 September 2022

Place: Melbourne

Counsel for the Applicant: Mr C. Trim

Solicitor for the Applicant: Patford-Smith Legal Services

Counsel for the Respondent: Ms A. O’Connell

Solicitor for the Respondent: Maeve O’Brien & Associates
ORDERS

MLC 5969 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS UMARU

Applicant

AND:
MR MALETTA

Respondent

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

28 April 2023

THE COURT ORDERS BY CONSENT THAT:
1.All previous Orders be discharged.

AND THE COURT ORDERS THAT:
Parental Responsibility
2.The parents have equal shared parental responsibility for the children, namely:
(a)X (born in 2012) (‘X’); and
(b)Y (born in 2014) (‘Y’).

(“the children”)

AND THE COURT ORDERS BY CONSENT THAT:
3.When the children are in the Mother’s care, the Mother have sole parental responsibility for the day-to-day care and welfare of the children.
4.When the children are in the Father’s care, the Father have sole parental responsibility for the day-to-day care and welfare of the children.

AND THE COURT ORDERS THAT:
Living Arrangements
5.The children live with the Mother.
6.During the gazetted Victorian school terms, the children spend time with the Father as follows:
Week 1
(a)Commencing 11 May 2023, from after school (or 5pm if not S School day) on Thursday until before school (or 9am if not S School day) on the following Monday and each alternate Thursday thereafter at those times;

Week 2
(b)Commencing 4 May 2023, from after school (or 5pm if not S School day) on Thursday until after school (or 5pm if not S School day) until before school (or 9am if not S School day) on the following Friday and each alternate Thursday thereafter at those times;
(c)At any other times as agreed between the parties in writing.

AND THE COURT ORDERS BY CONSENT THAT:
7.During the gazetted Victorian school holidays (commencing on the last day of the school term and concluding on the first day of the next school term), the children spend time with each parent as follows:
Long Summer Holidays
(a)Long Summer School Holidays (with changeovers to occur at 5PM):
(i)In odd-numbered years commencing December 2023/January 2024, the first half with the Father and the second half with the Mother.
(ii)In even-numbered years commencing December 2024/January 2025, the first half with the Mother and the second half with the Father; and

School Term Holidays
(b)Term 1 holidays: The children shall be with the Mother for the whole of the term 1 school holidays in odd numbered years, and with the Father in even numbered years.

AND THE COURT ORDERS THAT:
(c)Term 2 holidays: on a week-about basis, with the Father to have the first week in odd-numbered years and with the Mother in even-numbered years, with changeovers to occur at 5PM;
(d)Term 3 holidays: on a week-about basis, with the Mother to have the first week in odd-numbered years and with the Father in even-numbered years, with changeovers to occur at 5PM;

AND THE COURT ORDERS BY CONSENT THAT:
Special days
8.The children’s time with the Mother be suspended:
(a)On Father’s Day from 10:00am until 6:00pm.
(b)On the Father’s and children’s birthdays, if S School day, from the conclusion of school until 7:30pm, and if not S School day from 10:00am until 6:00pm.

9.The children’s time with the Father be suspended:
(a)On Mother’s Day from 10:00am until 6:00pm.
(b)On the Mother’s and children’s birthdays, if S School day, from the conclusion of school until 7:30pm, and if not S School day from 10:00am until 6:00pm.

AND THE COURT ORDERS THAT:
10.The children’s time with the Mother be suspended:
(a)From 4pm on Christmas Eve until 4pm on Christmas Day in 2022, and each alternate year, and from 4pm on Christmas Day until 4pm on Boxing Day in 2023, and each alternate year.

11.The children’s time with the Father be suspended:
(a)From 4pm on Christmas Day until 4pm on Boxing Day in 2022, and each alternate year, and from 4pm on Christmas Eve until 4pm on Christmas Day in 2023, and each alternate year.

12.Unless otherwise agreed in writing, changeovers will occur at the children’s school/s, or on a non-school day, in the carpark of the Suburb B McDonalds Restaurant (C Street, Suburb B), and save in emergency, the parents are to remain in their cars.

AND THE COURT ORDERS BY CONSENT THAT:
13.The parents do all acts and things to ensure both parents are authorised to:
(a)Attend any school function or extracurricular activities which parents usually attend – but only extracurricular activity games or events (but not merely training) when the children are with the other parent;
(b)Receive documents, notices and information from the children’s schools or sporting/extracurricular activity organisations that parents usually receive;
(c)Receive any information from the children’s schools and medical professionals which parents usually receive;
(d)Communicate with each other regarding parenting issues – including via the WeParent App.

Travel & Passports
14.In the event either parent wishes to take the children on a holiday interstate or internationally they shall provide to the other parent written particulars of the proposed trip including itinerary, flight details, addresses where the children will be staying and (if overseas) travel insurance no later than 21 days before the holiday commences.
15.Neither party be permitted to relocate interstate or overseas with the children.

AND THE COURT ORDERS THAT:
16.The children’s Country D and Australian Passports be held by the Mother at all times except when the Father is to travel with the children overseas and the Mother is to provide the Father with the children’s Australian Passports for travel overseas by no later than 28 days prior to the travel time. When the Father returns from overseas with the children, the Father is to return the Australian Passports to the Mother within 7 days of return.

AND THE COURT ORDERS BY CONSENT THAT:
17.Both parties are to do all acts and things and sign all documents necessary to renew and/or apply for Australian and Country D passports for the children.

AND THE COURT ORDERS THAT:
Communication
18.The parties will facilitate the children’s communication with the parent with whom the children are not spending time, via telephone or Zoom video conference on the children’s iPads, as follows:
(a)On Sundays and Wednesday each week from 6:30pm to 7:00pm Victorian time; and
(b)When reasonably requested by the children;

with the children to be given privacy during such calls.

AND THE COURT ORDERS BY CONSENT THAT:
19.The parties will:
(a)Within 7 days from the date of these Orders, do all acts and things necessary to establish an account with the communication application WeParent; and
(b)Communicate about parenting matters via the communication application WeParent, unless in the event of an emergency.

20.That the parties forthwith notify each other of any:
(a)Significant medical issues concerning the children, or either of them, and authorise each other to communicate with the children’s treating health professionals regarding same; and

AND THE COURT ORDERS THAT:
(b)Save in emergency, changes to their address and contact details no less than 14 days beforehand.

Schools
21.The parents:
(a)ensure that the children continue to attend E School (F Street, Suburb G) for the duration of their primary schooling; and
(b)do all acts and things necessary to enrol both children at H School (J Street, Suburb G, Victoria) for their secondary schooling, unless otherwise agreed between them in writing; with
(c)all usual school-hours school expenses (not after school care) are to be paid for equally by the parties (unless otherwise agreed between them in writing) with the expense of after school care to be at the expense of the parent organising same.

Extracurricular activities
22.The parties be permitted to enrol the children in and take them to other extracurricular activity events whilst the children are in his or her care, provided that this does not impinge on the children’s time with the other parent and such enrolment does not require the other parent to facilitate such activity in his or her time unless agreed in writing.

Medical Matters
23.The parties will ensure that both children attend upon a psychologist (‘the children’s psychologist’) on the following terms:
(a)Within 7 days from the date of these Orders, the parties attend upon a GP to obtain a referral and discuss mental health care plans;
(b)The parties will ensure that both children attend upon the referred psychologist as soon as possible;
(c)The parties will ensure that the children continue to attend upon the psychologist for as long as treatment is recommended by the psychologist but not longer than 6 months unless agreed by the parents in writing.

AND THE COURT ORDERS BY CONSENT THAT:
24.If the children require any elective or voluntary dental or medical treatment, both parties shall communicate the problem to the other parent within 7 days and provide copies of any report/correspondence or advice they have obtained from the children’s treating doctor, dentist or specialist.

AND THE COURT ORDERS BY CONSENT THAT:
Injunction
25.Without admitting necessity for the same, each of the parents, their servants and agents be and are hereby restrained by injunction from:
(a)Abusing, insulting, rebuking, belittling or otherwise denigrating the other party or their family/friends to or in the presence or hearing of the children or allowing the children to remain in the presence of third parties engaging in such conduct; and
(b)Discussing these proceedings or the contents of any documents filed in these proceedings to, with or in the presence or hearing of the children or permitting any other person to do so.

AND THE COURT ORDERS THAT:
Parenting Coordination
26.Pursuant to section 13C of the Family Law Act 1975, the parties shall participate in the service of Parenting Coordination and for that purpose will forthwith retain Ms K (or another parenting coordinator as agreed by the parties in writing), as parenting coordinator (“the Parenting Coordinator”), on a non-confidential basis for a minimum term of twenty-four (24) months from the date of these Orders, on the terms provided in this Order and in the form of the Parenting Coordination Agreement endorsed by Parenting Coordination Australia (the “Standard PC Agreement”), provided that where terms of this Order conflict with the Standard PC Agreement, this Order will prevail.
27.The parties shall do all acts and things necessary to:
(a)attend on the Parenting Coordinator:
(i)for an intake session within 29 days of the date of these Orders;
(ii)for 1 session per school term or as otherwise required by the Parenting Coordinator; and

(b)authorise the Parenting Coordinator to communicate with the children’s psychologist.

28.The Parties’ parenting arrangements in relation to the children are set out in Parenting Orders of this Honourable Court.
29.Within 7 days of the date of these Orders, the parties will complete the appointment of the Parenting Coordinator, including:
(a)execution of the Standard PC Agreement, and
(b)remittance of all requisite retainers and deposits,

with each party having liberty to apply to the Court on the giving of 14 business days’ notice in the event of a failure in the appointment of the Parenting Coordinator.
30.Within 29 days of the date of these Orders or no later than 7 days prior to the first intake session booked with the Parenting Coordinator, whichever is the earlier, the parties or either of them shall provide to the Parenting Coordinator:-
(a)a copy of the Final Parenting Orders;
(b)copies of all Family Reports and Child Impact Reports released in the course of this proceeding; and
(c)Reasons for Judgment delivered with these orders.

31.The fees, disbursements and other charges of the Parenting Coordinator will be shared equally by the parties, subject to the Parenting Coordinator’s Standard PC Agreement and in particular, the Parenting Coordinator’s authority to reapportion the total parenting coordination costs between the parties as provided in the Standard PC Agreement. Either party is at liberty to apply to the Court to resolve any issue arising out of the other party’s non-payment of the fees, disbursements and other charges of the Parenting Coordinator.
32.Subject to any applicable Orders of the Court, if the parents are unable to agree on any decision affecting the parenting responsibilities or parenting arrangements for the children, they will refer the dispute to the Parenting Coordinator prior to instituting or renewing Court proceedings, whether on an interim or final basis or for Orders for enforcement or contravention, on matters which are within the scope of the Parenting Coordinator’s services.
33.Either party is at liberty to apply to the Court if either party fails to comply with the recommendations or proposed protocols of the Parenting Coordinator, and the Parenting Coordinator’s written reasons for such recommendations or proposed protocols shall be available as evidence to be produced by either party in any such application to the Court.
34.In the event the Parenting Coordinator is required, pursuant to section 13D of the Family Law Act 1975, to report to the Court a failure by either party to comply with this Order, the Parenting Coordinator shall do so by email to the Judge’s Associate.
35.If the parents disagree about the interpretation or implementation of any provisions in these Orders, they shall first bring this to the attention of the Parenting Coordinator and should no agreement be reached, the Parenting Coordinator may direct the parties to attend upon L Support Centre or another family dispute resolution service as agreed in writing, for the purpose of mediation as soon as possible, with the costs of same to be equally shared between the parties.

Courses & Other Orders
36.The parents are at liberty to provide a copy of these Orders to any medical, allied or any other health professional treating either of the children or to any other appropriate third party requiring the Orders in an official and/or professional capacity.

AND THE COURT ORDERS BY CONSENT THAT:
37.The parties each forthwith enrol in and complete the ‘M Program’ (unless already completed after final hearing), and provide written proof of completion of same to the other.

AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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 Umaru & Maletta has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION

I must determine the living arrangements and secondary schooling for two children aged, at the time of trial, 10 and 8 years (‘the children’). Those questions are to be determined according to Part VII of the Family Law Act 1975 (Cth) (‘the Act’).
Background
The children’s mother is Ms Umaru (‘the Mother’), born in 1979, now aged 43 and working in the technology sector. The Mother was born overseas and her family of origin remain overseas. The children’s father is Mr Maletta (‘the Father’), born in 1977, now aged 46 and working in the retail sector. The Father was born in Australia. The children were born in Australia and have lived in a week-about equal time arrangement between the parents since interim orders were made by consent in March 2021.
The parties commenced a relationship in 2007, with the Mother at that time living overseas. Cohabitation commenced when the Mother moved to Australia in early 2009 and the parties married in 2010. Their eldest child, W, was born in 2012 and their youngest child, Z, was born in 2014. The parties separated in mid-2016 when the children were aged 3 and 2.
PROCEEDINGS
This is the second judgment I have delivered in these proceedings, the first being an interim judgment delivered on 20 May 2022 (‘the first judgment’).
Proceedings were originally issued on 29 May 2018 and final orders were made by consent on 23 November 2018 (‘the 2018 final orders’). At that time the children were aged 6 and almost 5 years old.
Those orders included the following:
THE COURT ORDERS, BY CONSENT, THAT:
Parenting
1.The Mother and Father have equal shared parental responsibility for the long term care and welfare of the children, namely:
1.1      [W] born on [date 1]; and
1.2      [Z] born on [date 2]
(“the children”)
2.When the children are in the Mother’s care, the Mother have sole parental responsibility for the day to day care and welfare of the children.
3.When the children are in the Father’s care, the Father have sole parental responsibility for the day to day care and welfare of the children.
4.The children live with the Mother.
5.During the gazetted Victorian school terms, the children spend time with the Father as follows:
Week 1
5.1Each alternate weekend from after school/kindergarten/childcare or 5pm if not S School/kindergarten day on Friday until before school/kindergarten/childcare (or 9am if not S School/kindergarten day) Tuesday.
Week 2
5.2Each alternate week on Wednesday from after school/kindergarten/childcare (or 5pm if not S School/kindergarten day) until 7.30pm;
5.3at any other times as agreed between the parties in writing.
6.During the gazetted Victorian school holidays, the children spend time with each parent as follows:
6.1with each parent every alternate week for Term 1 of the gazetted Victorian school holidays;
6.2with the Mother for all of Term 2 of the gazetted Victorian school holidays;
6.3with the Father for all of Term 3 of the gazetted Victorian school holidays; and
6.4for the first two weeks of Term 4 of the gazetted Victorian school holidays with the Father and the second two weeks of Term 4 of the gazetted Victorian school holidays with the Mother and thereafter to equally split the remainder of the Term 4 of the gazetted Victorian school holidays with each parent, with the exception of Orders 8.4 and 8.5 herein or otherwise as agreed in writing.
7.        When the Father moves within 15 kilometres of the children’s enrolled school ([E School]), that the children shall spend equal time with each parent (in addition to Orders 5 and 6 herein).
…
11.Changeover shall take place either at school or kindergarten or child care or at such places as agreed between the parties in writing.
12.Within 48 hours of making these Orders, [[N]] Lawyers shall release the children’s [country] and Australian passports to the Mother. That the children’s [country] and Australian Passports be held by the Mother at all times, except when it has been agreed for the Father to travel with the children overseas in accordance with Orders 9 and 10. The Mother is to provide the children’s Australian Passports for travel overseas by no later than 48 hours prior to the travel time. When the Father returns from overseas with the children, the Father is to return the Australian Passports to the Mother within 24 hours.
…
(Emphasis added)

On 1 December 2020, the Father filed an application for Final Orders to re-litigate the children’s arrangements. The Mother did not oppose the re-agitation of parenting matters. She did not raise the principle of Rice & Asplund (1979) FLC 90-725 and sought different orders to the 2018 final orders.
On 13 October 2021 I heard an interim defended hearing and reserved orders and reasons. The parties had obtained a private preliminary report as to the children’s welfare. That report was critical of the Father and recommended a change to their living arrangements so that the children lived with the Mother and spent time with the Father in a 9/5 arrangement. The report writer made observations that rested on factual matters that were in dispute. On 20 May 2022 I published my orders and reasons and determined that I could not determine on an interim hearing the competing factual allegations underpinning the recommendations for change and the then existing week about position previously agreed to in the 2018 final orders remained in place.
The Final Orders provided for the children to live with the Mother and spend time with the Father for an extended weekend on each alternate weekend from Friday until the following Tuesday, and on the alternate Wednesday to spend from after school for the evening. But order 7 provided that when the Father moves within 15 kilometres, then the children shall spend equal time with each parent, and that when the equal time regime commenced, the school holiday arrangement continued. Back in November 2018 the parents chose not to share all School holidays but to have the whole of term 1 holidays in alternate years with the Mother to have the whole of term 2, and for the Father to have the whole of term 3, with the Christmas holidays to be shared on a basis of two weeks about.
In March 2019 the Father moved to rented accommodation within the 15 kilometres. It is apparent that in November 2018 the parties shared the view that it was important for an equal time arrangement that both parents live nearby to the children's school. Between March 2019 and March 2020, the Father's accommodation was a not entirely transparent arrangement of house-swapping with his parents so that he was within the 15 kilometres.
The Father moved back to his property in May 2020, which was outside the 15-kilometre agreed radius for the equal time arrangement. On 23 March 2020, the parties exchanged emails which contained a request by the Father for the Mother to agree to continue the equal time arrangement, which had been in place since March of 2019, notwithstanding that he was moving outside of the 15-kilometre range. The Mother did not agree. The Father moved anyway.
The parents met in 2020 and discussed arrangements. At this time, the Father remained living outside the 15-kilometre area. A trial arrangement or agreement was reached whereby the Father was to have the children for five nights a fortnight, rather than four as provided in the November 2018 orders, with an additional dinner each fortnight, that is, a total of two evenings for dinner in addition to the five nights a fortnight. The effect of this was that the children would spend some time with the Father seven days a fortnight.
On 12 July 2020, as a consequence of the COVID-19 pandemic, the Victorian Government announced remote learning, and on that day, by email, the Mother proposed that during the lockdown that there be equal time with a week on/week off arrangement, and the Father agreed. In September 2020, by email again, the parties disagreed about whether or not the equal time arrangement should continue when the children return to face-to-face school, as opposed to remote learning. This was at a time when the Father lived outside the 15m radius in Suburb O (‘the Suburb O’ property). The children went back to face-to-face school on 12 October 2020, and from then until 11 March 2021, the parties unhappily followed the previous orders, which was for the Father to have four nights per fortnight.
The Father sold his Suburb O property and purchased another property within the 15-kilometre radius and took possession of that property on 4 August 2021. Hence, at the time of the interim hearing on 13 October 2021, the Father was living in his new premises within the 15-kilometre boundary of convenient travel to the children's school. Since 11 March 2021 the children have been living in that equal time arrangement.
The Final Hearing
The Final Hearing was originally listed for two days commencing on 1 September 2022. At the conclusion of those days, the matter was listed part-heard for another two days on 15 and 16 September 2022 after ascertaining the availability of the report writer, Ms P.
On 16 September 2022 I reserved orders and reasons and made a notation directing counsel to confer and exchange and send to Chambers a short list of authorities dealing with the issue the Court’s power to order payment of substantial private school fees as a parenting order within 14 days. The Mother sent to Chambers short written submissions on 28 September 2022 and the Father sent to Chambers short written submissions on 29 September 2022.
Documents relied upon
The Mother relied upon the following documents:
·The family report dated 22 August 2022 (that referred to the interim report);
·The Mother’s amended response filed 30 August 2022;
·The Mother’s affidavit filed 31 August 2022; and
·The Mother’s costs notice filed 31 August 2022.
The Father relied upon the following documents:
·The Father’s trial affidavit filed 29 August 2022; and
·The family report dated 22 August 2022 (that referred to the interim report).
Exhibits tendered
Exhibits tendered were as follows:

Exhibit # Description

2 September 2022

A minutes of matters agreed dated 2 September 2022

C1 Google maps printout of directions from Q School to E School

15 September 2022

W1 Minute of proposed orders sought by the Wife marked up with agreed or disagreed

H1 Minute of proposed orders sought by the Husband

16 September 2022

W2 Our Family Wizard messages

W3 Email from 1 July 2022 re: Family Report

W4 1 July email with attachments (8 pages collectively) – instructions re: Family Report preparation

W5 Photo of invoice from dentist

Witnesses

The Mother and the Father were both cross-examined. The family report writer, Ms P, was also cross-examined.
APPLICABLE LAW
Standard of proof
In these reasons, statements of fact are findings of fact. Findings are made on the balance of probability. I apply section 140 of the Evidence Act 1995 (Cth) which states as follows:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)        the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.
Credit of parties
Fox v Percy (2003) 214 CLR 118 was a High Court case concerning the skid marks of a Kombi van on the correct side of the road. When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality observed:
[31] …in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
[Citations omitted]
In this case I have attempted to rely on contemporary records including school attendance records and emails rather than the parties’ recollections or opinions of past events. I was able to observe the parties in the witness box and examine their demeanour and reactions to questions. The issue of credit goes to one aspect of the reliability of the evidence of the parties.
In these reasons findings of fact are made on the balance of probabilities, partly from my observations of the demeanour of witnesses and where possible on the basis of contemporaneous materials, objectively established facts and the apparent logic of events. In this case the real attitude of each of the parents to the other and to the responsibilities of parenthood (as opposed to their statements) turned, in part, on the reliability of the evidence of the parties. The reliability of that evidence turned to only a small degree on the credibility of the parties.
PARENTING ORDERS
In deciding what particular parenting orders to make I regard the best interests of the children as the paramount consideration (section 60CA of the Act) and apply to the whole of part VII of the Act including the objects and principles.
I must consider the matters described in the Act as “primary considerations” and “additional considerations”. In doing so I take into account all of the evidence including those parts I have recited in these reasons as “significant events”.
I apply and take into account the whole of Part VII of the Act. In particular, I apply sections 60CA, 60CC, 61DA, 65DAA and 65DAC which are as follows:
60CA:Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)Additional considerations are:
(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;
(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);
(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; and
(ii)to spend time with the child; and
(iii)      to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)        either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(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;
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(not relevant to this case)
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(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;
(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;
(m)      any other fact or circumstance that the court thinks is relevant.
…
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
…
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)      the time the child spends with the parent includes both:
(i)       days that fall on weekends and holidays; and
(ii)      days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Consent orders
(6)If:
(a)the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b)the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(7)To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
…
65DAC Effect of parenting order that provides for shared parental responsibility
(1)      This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note:Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)      The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
SOME SIGNIFICANT EVENTS
Order 7 of the 2018 final orders provided that when the Father moves within 15 kilometres of the children’s school, the children shall spend equal time with each parent. At the time of the 2018 final orders, the Father lived over 15 kilometres from the children’s school at his Suburb O. In March 2019, the Father acquired and moved into a rental property within that 15 kilometre radius, and so equal time commenced. At that time, he began renting out the Suburb O. The Father says that in May 2020, during the height of the COVID-19 pandemic, the tenant of the Suburb O stopped paying rent and trashed the Suburb O. That tenant then moved out and so he moved back in to the Suburb O, and he contends he was compelled to do so by circumstances. He was not compelled to do so but chose to, albeit for very good reason from his perspective. Equal time continued, although disagreement arose as to whether the equal time arrangement was supposed to continue in such circumstances under the 2018 final orders. In August 2021 the Father purchased his current home in Suburb R, about 10 kilometres from the children’s current school.
The interim report and the family report

Ms P, a clinical psychologist, produced two reports in this matter. The first is dated 14 June 2021 and filed 16 June 2021 (‘the interim report’) and the second is dated 22 August 2022 and filed 30 August 2022 (‘the family report’).
The interim report: May 2021
Interviews for the interim report were conducted in May 2021. At that time the Father lived with a partner and her two children, then aged 11 & 9. Significant parts of the report included:
26 [The Mother] reported feeling intimidated, denigrated, controlled, monitored, and attacked about minor issues, such as her punctuality and attendance and not taking [W] to [sports training]. She said he messaged her saying that she is “pathetic and disgusting” when she failed to pack the children's runners. He said these words referred to her actions rather than her.
…
39 [The Mother] raised concerns about the children's emotional well-being in the father's care due to alleged exposure to denigration of her, paternal aggression and anger, and involvement in the parental dispute.
40 [The Mother] believes both children need counselling though [the Father] has not provided his consent. She said that [W] bites her nails, wet her bed for 4 months after her father repartnered, and still wets her bed occasionally. She believes [W] feels pressured and fears saying something wrong or upsetting her parents. She said [Z] is sensitive and emotional and feels unloved if his father becomes angry or ignores him.
…
53 [The Father] said he finds the mother's poor punctuality frustrating, but the children did not seem to be perturbed about arriving at school late and the children's overall attendance did not seem to be of concern. The father did acknowledge that the pandemic has been difficult for the mother as the maternal grandmother is unwell and the mother has been unable to return to [country D] to see her, family, or friends.
…
81 Whilst the parents alleged denigration and influence by the other parent, these were not found to be significant issues during the current evaluation. However, it is important that the father allows the mother to spend time with the children as she wishes, without criticism, intimidation, or pressure.
…
84 The father presented with positive impression management regarding his abilities as a parent, the children’s level of functioning, the strength of the children ' s relationships with his partner and her children , and how well the children have adjusted to the blending of families and the separation. This may reflect a lack of insight by the father or conscious positive distortion. Regardless, the father has dismissed the children’s struggle to adjust to the changes in their lives and lack of stability and consistency in his care, thus has not responded to their need for additional care, consideration, and support. He seems to lack an understanding of attachment processes and the children's need for a stable base, seeming more concerned about equal time, the mother’s punctuality, and the children's unreturned shoes.
85 The mother is more emotionally attuned and responsive to the children's needs. She is aware that [W] is anxious about saying something wrong and upsetting her parents, and that [Z] is sensitive to his father's anger, which was apparent during this evaluation but not recognised by the father. [Z], in particular, is more closely bonded to his mother. Both children prefer greater time with their mother than their father, though [W] was hesitant in saying so.
86 Both parents appear to be devoted to the children and capable of meeting their basic and developmental needs. It is important that the children’s secure attachment to their mother is protected and nurtured to ensure the best possible developmental outcomes, but also that the father’s relationship with the children is given adequate opportunity to develop , strengthen, and grow.
The interim report then went on to recommend a change from the week about arrangement and:
·Equal shared parental responsibility;
·The children live with the Mother and spend alternate weekends and every other Wednesday night with the children;
·The Father take W to sports training on Fridays and other extracurricular activities if the Mother is unable to transport them; and
·There be flexibility to reschedule time arrangements by mutual agreement.
Orders and reasons following the interim hearing of 13 October 2022 were published on 20 May 2022, that is, in between the interim and family reports. I did not follow the recommendations in the interim report and instead I made orders continuing the equal time arrangements in the interim. My reasons included that at that time, I was unable to make factual findings in the interim hearing, particularly as to the (disputed) parent’s attitudes toward each other, the children and parenting. I also took into account that if I were to order equal time at final hearing it would have been confusing to the children to have different arrangements for such a short time.
The family report
Interviews for the family report were undertaken in July 2022. That report notes that the Mother did not follow directions outlined in the email[1] sent to organise the interviews and did not arrange a support person to watch the children for the family report interviews, and she also took a much longer break than Ms P intended to such a degree that the Father’s interview time was pushed back. This was highlighted in cross-examination of the Ms P by the Father’s counsel.
[1] The instructions are contained in exhibit W4 of 16 September 2022, an email of 8 pages (or 9 as one page is double sided) of email and attachments of small font and the attendance by a family member or friend is contained in one of thirteen small dot point paragraphs at page 6A of the seventh page of the exhibit.
At the time of the family report in 2022, the Father had ceased living with the partner he had at the time of the interim report in 2021.
Relevant parts of the family report include the following:
3 The mother also arrived late for the family report assessment. Despite prior instructions, she did not allow time to complete RATs or arrange for someone to supervise the children whilst she was being interviewed. She stated that she could not call the father due to the IVO in place but made no effort to have her lawyer arrange for the father to be present or range or another supervisor. As a result, there were delays and the day plan had to be rearranged. The mother called a friend who came to collect the children. The mother had to collect the children from the friend at the end of the day to bring them back for the interaction with the father. There was an overall sense of chaos created by the mother's tardiness and lack of pre-planning which likely added to the anxiety of the children and mother.
…
16 The father prioritised time with the children by selling [the [Suburb O]] and purchased his current five-bedroom home in [[Suburb R]], 10 km from the children's primary school. Settlement was on 4 August 2021. The father is now able to offer the children stable accommodation after a period of instability.
…
23 During the [first] report evaluation, [the Mother] expressed concerns about the father facilitating communication with the children whilst in his care and he indicated that he encourages contact, but the children do not want to communicate with the mother. Both parents believe that the other refuses to facilitate communication at the request of the children and the father believes that the mother shuts their communication down, though the parents' concerns were not supported by the children. The father likely distrusts the mother as she previously blocked his calls on her phone as she was feeling harassed.
24 [The Mother] is also of the view that the children are too scared to ask the father if they can speak to the mother, yet the father will contact the children incessantly whilst in her care and disrupt her time with the children. She referred to [W] missing 23 calls from the father recently when out and unavailable. [The Mother] would like communication to occur at fixed times so that the children are able to contact each parent but are not made to feel harassed, intimidated, or distressed.
…
27 [The Mother] continues to feel intimidated, denigrated, controlled, monitored, and attacked by the father about minor issues, such as her punctuality and attendance. [The Father] acknowledged that he finds the mother's poor punctuality frustrating. Her disorganisation and tardiness also impacted the family report assessments, such that others had to change their plans at short notice to accommodate the mother's lack of planning. Whilst the father acknowledged her lateness may be driven by culture, he believes it is disrespectful and inconsiderate of others who are negatively impacted. He said the children's sports teams are let down when the children are late, and the children are made to feel embarrassed or uncomfortable. He said, "it's not that hard to turn up on time".
28[The Mother] said the father has repeatedly breached the full exclusion IVO though she has notified police on one occasion when he came within 5 m of her at [sports] training. He said he lifted his head and was 3 m from her; he froze and stared at her. He was charged with the breach and received a six-month community corrections order without conviction. She claimed that he also said "don't be pathetic" when she videoed him at after-school care and shouted at her when she was handing over [S School] bag with uniform, "If I don't have what I asked you for, [the children] will not come to school on Monday. Do you understand?"
…
30 [The Mother] stated that the father continually makes her feel intimidated by attending the children's activities, training, and after school care during her time with the children. She said she cannot enjoy her time with the children, and the children are exposed to the tension created. She also claimed that he approaches her car when she is inside, opens the car doors and boot, and places items inside, causing her significant distress. He believed he was doing the right thing by chaperoning the children to the car and carrying their items, particularly when it is cold and raining, but said "she jumps up and down" about him approaching the vehicle.
…
32 The father responded well to being told that his presence increases the mother's anxiety, whether justified or not, and therefore the tension to which the children are exposed, thus minimising unnecessary contact and communication is of benefit to the children. The father said he would give her space to sit with the team supporters at [sports] matches during the week in which the children are in her care and discontinue approaching her car. He said he wants the mother to be happy as he believes the children will also benefit from that.
33 [The Mother] previously raised concerns about the children's emotional well-being in the father's care due to exposure paternal aggression anger and aggression, and the father denigrating her in their presence, but seemed more concerned about the children's exposure to tension and conflict between the parents on this occasion. Whilst she said the father does not have a strong emotional connection with the children, she acknowledged the children have fun with the father.
34 The father acknowledged that the pandemic was difficult for the mother as the maternal grandmother has been unwell and the mother was unable to return to [Country D] to see her, but she has returned to [country D] twice this year. The father is very supportive of the mother being able to travel to [country D] once or twice annually and is open to travel outside of the school holidays whilst the children are young. However, he does not want a repeat of the last school holidays whereby the children spent four weeks away from him though they did not travel overseas. He said the entire holiday period was allocated to the mother and the mother tested positive for Covid and kept the children with her. The father was disappointed that the mother had not allowed him to collect the children when they tested negative, though he had arranged for the mother to take the children when he tested positive in January. He said the four-week period in which the children did not see him was distressing for the children and not child focused.
…
58 [The Mother] presented as naïve, anxious, and lacking in self-esteem and confidence. Although child focused and emotionally attuned to the children, her thought patterns were scattered and tangential, as her behaviour was disorganised. She was late and had not arranged a supervisor for the children during her interview, though I advised [her] to do so in advance. The day had to be reorganised to accommodate the mother's lack of planning.
…
66 [The Mother] is concerned that [W] is overly considerate, lacks assertiveness, and is being triangulated in the parental dispute by her father, causing her to feel nervous, overwhelmed, and pressured. [The Mother] claims that the father lets [W] read all the messages on the parenting app and communicates through [W] when he does not get what he wants from the mother. [The Mother] believes [W] does not want to upset her parents and is always worried about each parent being happy.
68 [The Mother] raised concerns regarding parent-child communication when the child is in the other parent's care. She is concerned that whilst in their father's care, the children are not given privacy when they communicate with her, they fear asking to call her, and the father refuses to facilitate calls. She claimed he is the background during video calls as the children will look backwards. She reported that the children expressed that they miss her when with the father, but [Z] will say "I'll deal with it" and no longer calls or speaks during video calls. [The Mother] claimed that [Z] stopped calling following an incident in which the father prevented him from contacting the mother when crying and pleading to speak to her.
69 [The Mother wants] scheduled phone calls so that the children are not burdened with having to ask to call the other parent and to avoid the father calling the children incessantly and disregarding that they may be busy. [W] and the mother indicated that [W] received 23 missed calls from her father recently.
…
73 [The Mother] is concerned about the children's emotional well-being in the father's care and that the father has not provided consent for the children to receive counselling. Although she previously raised concerns regarding the father denigrating her in the children's presence and exposing them to aggression and anger, this seemed to be less of a concern during the current evaluation.
…
107 [The Father] is a 45-year-old male who initially presented as defensive, dominant, and unwilling to show vulnerability, but this changed significantly as the interview progressed. He appeared far more flexible, open to discussing different viewpoints, and expressed willingness to adapt his own behaviour to reduce the mother's distress and therefore the tension to which the children are exposed. This seemed to be a considerable shift since the previous evaluation.
…
109 [The Father] said he was devastated by the assessor's recommendation of a 9:5 arrangement in the previous report though it was not adopted. The assessor explained that his living arrangements were unstable, the children were not comfortable living with his partner and children, and the children have closer emotional connection to the mother.
…
154 [W] indicated that she likes the current time arrangements as each week goes quickly and she has a lot of fun. However, she recently spent an extended period with her mother during the school holidays and missed her father. [W] wants the current time arrangements to remain in place and thought they may have been in place for one or two years. She believes that these arrangements are fair, and she did not like it when she saw her father every second weekend.
155 [W] recalled that there were problems when changeover occurred at [sport] as her parents "don't like each other". She said that they "look at each other like they don't like each other" which makes her feel sad. She said that changeover mostly occurs at school now.
156 [W] said that her parents sit on opposite sides of the sports court during [[Z]'s] matches and "it's weird" as her mother sits with the other team. If she goes over to see her father, her mother will say come back. She is aware that her mother is uncomfortable at these games with the father present.
157 [W] said that her mother does not say anything bad about her father, and her father rarely says good or bad things about her mother. However, her father asked why her mother "can't just see [his] messages on [the Our Family Wizard app]? He added, "Mum makes everything harder".
158 [W] was asked if she ever felt worried, scared, or uncomfortable with either parent. She said that her mother always allows her to call her father and says that they can call him whenever they want but her father will not stop calling her iPad. [W] said, "if I have to go, I say I will call him back", but if she goes out, she returns to "so many missed messages" from her father. [W] said, "I think he thinks I'm going as I don't want to speak to him, but I truly have to go".
159 [W] said that her father will call her even when he knows that she is already rushing to get ready and will become "really angry" when her mother is late. [W] said that her father will say, that "mummy grew up in [country], but mummy needs to understand that this is Australia and there are different rules". [W] said that they sometimes wear shorts in winter, but "get used to it". However, her father will say, "mummy needs to understand it's not [country], it's winter, and it's not hot every day".
160 [W] stated that she has been to [country D] five or six times and stays with her maternal grandmother and sees her aunt and cousins. She said her father does not like [country D] as he says it is "sticky, humid, and dirty", and that "people live in the same houses and sleep in the same bed". [W] indicated that she has her own room at both her parents' houses, sleeps in her own bed, and likes going to [country D].
…
163 [W] said that she enjoys riding a bike, jumping on the trampoline, and baking with her father. The best thing about her father is that he is funny and makes jokes about everything. The worst thing about her father is the pressure he places on her to call him when at her mother's house. She believes that he thinks that the mother is stopping her from calling him when this is not the case.
164 [W] said that a good memory of time with her father is when they went to the swimming pool and played [a game] whereby, she falls into the pool, and he catches her. However, she said that [Z] will blame her when he does something wrong, and her father will yell and smack her. She said she was last smacked by her father two weeks ago and a week before that, but [Z] is smacked less. She said her mother used to smack her but does not anymore.
165 [W] said she loves shopping and watching movies with her mother. The best thing about her mother is that she is funny and makes puns with the [language]. The worst thing about her mother is that her mother blames her when [Z] does something wrong. If she is in trouble, her mother will yell but then tries to teach her a lesson. She said her father yells more and when he is stressed, he also swears.
166 [W] volunteered that her mother works a lot, including at home, and she would prefer that her mother worked less, so that she attends after school care two days a week rather than Monday to Thursday when in her mother's care. She said that her father is more active and available to her.
…
170 … [Z] indicated that his father yells a lot and that this makes him scared.
…
172 [Z] said that he currently plays [sports]. He said his parents take him to [sports] separately, but his father always attends whereas his mother only attends when he is staying at her house. He likes it best when they are both present.
173 In terms of time arrangements, he said that week about arrangements are pretty good. He does not want arrangements to change as they are "even", have been in place for a long time, and he missed his father when he only saw him every second weekend. He is aware that his father wants the same amount of time as his mother and believes his mother wants what is fair.
…
177 [Z] said his mother does not talk about his father, but he does not think that she likes him. He said his father does not talk about his mother much as he does not like her. He said they will walk away from each other when they come into contact, and this makes him feel sad.
178 [Z] said that he enjoys doing everything with his mother, but especially hugging, watching movies together, and being tickled by his mother. The best thing about his Mum is "everything" and the worst thing is when she gets angry with him as she yells, but "not so much… it's a bit scary, but dad is scarier and yells more often coz I'm a bit naughty". [Z] smiled and said that his mother smacks him a lot, but his father will yell and tell him not to misbehave again.
179 [Z] said that he enjoys hanging around together, telling jokes, and sharing movie nights with his father. The best thing about his father is when he sleeps with him about twice per week, though he never sleeps with his mother. The worst thing about his father is that he yells a lot and becomes scary.
…
187.After the parents separated, the mother unilaterally decided that the father needed to live within 15 km of the school to support equal time arrangements, but the children should otherwise spend four nights per fortnight with him. Time arrangements varied thereafter according to the father's proximity to the school and remote learning during lockdown. As a measure of his devotion to the children, the father sold the farm to relocate closer to the school and satisfy the mother's condition for equal time arrangements.
188 The children felt unsettled by the father's changing living arrangements and having to co reside with his new partner and children, but the father has since bought a large home within 10 km of the children's primary school, and his partner and children live separately.
189 Whilst the mother is more emotionally attuned to the children and the children both expressed having a closer connection with her, the father is more available to the children and more capable of supporting the children's engagement in education and extracurricular activities, and ensuring they attend on time.
190 Orders for equal time arrangements on a week about basis were made on 11 March 2021. No major concerns have been raised regarding the amount of time the children spend with each parent since, and the father's living arrangements have stabilised, thus it is not in the best interests of the children to vary these arrangements. The children are also seeking that these arrangements remain in place.
191 It is also recommended that equal time arrangements continue throughout the school holidays with flexibility to reschedule time arrangements for extended holidays with the children, so that the mother is able to return to [country] and the children are not subjected to another extended block of time away from a parent unnecessarily.
192 There has been a significant change in the parents' presentation between assessments. The father was rigid, defensive, and domineering during the previous evaluation, and his animosity and resentment towards the mother and determination to establish a blended family clouded his ability to remain child focused and respond appropriately to the children's needs. On this occasion, he presented as the more flexible parent, more willing to compromise and adapt his behaviour to reduce the mother's anxiety and therefore the tension to which the children are exposed. The father shifted his focus from equal time to being involved in all aspects of the children's lives but did not adequately consider the impact of his increased presence on the mother's anxiety levels, or that she would feel intimidated or harassed as a result.
193 On the other hand, the mother has become increasingly inflexible as her anxiety increased. She has made several decisions without consulting the father, such as relocating to the catchment area for the school she prefers. Such behaviour is not conducive to establishing positive communication and an effective co-parenting relationship in which both parents' views are valued and considered.
194 A parallel parenting approach is therefore recommended, whereby each parent is responsible for their own time with the children without the other parent's interference, so that the children's exposure to tension between the parents, maternal control, and parental distress is minimised. Communication should only relate to health, education, extracurricular activities, and religious and logistical matters in relation to the children with the use of a parenting app. It will be necessary for the father to discontinue attending the children's activities during the mother's time when the mother is present, other than the children's weekend sports matches, to minimise the children's exposure to tension, conflict, and maternal distress.
195Both parents are capable of making long-term decisions in the best interests of the children, thus parental responsibility should be equally shared. However, engagement with a parenting coordinator is recommended once Final Orders are made to avoid returning to Court, and for support when make long-term decisions, such as choosing a high school for the children next year.
…
197 Whilst the children's views were not given significant weight due to the children's age and maturity, desire to please both parents, and limited understanding of the dispute and the long-term implications of their proposals, the recommended time arrangements align with their preferences. Both children present with anxiety-related issues in the context of their parents' separation and would benefit from engaging with a psychologist.
198 The children have been observed to be closely bonded to both parents and both parents appear to be devoted to the children and capable of meeting their basic and developmental needs. It is important that the mother's close attachment to the children is protected and nurtured, but also that the father is given adequate opportunity to develop and strengthen his connection with the children, and this should be reflected in time arrangements.
…
RECOMMENDATIONS
In the absence of evidence to the contrary, the following recommendations are respectfully made:
1. The parents have equal shared parental responsibility for the children.
2. The children spend equal time with each parent on a week about basis with changeover commencement of school on Fridays (or 9 AM on non-school days), continuing during school holidays, with special dates shared.
3. There is flexibility to reschedule time arrangements by mutual agreement in writing to allow for extended holidays. The mother can travel to [country D] with the children for a period of up to 3 weeks, up to twice annually.
…
6. Video or telephone communication is scheduled at a mutually agreed time twice per week between the children and parent with whom the children are not spending time, for example, Sundays and Wednesdays from 6:30 PM until 7 PM. The children are given privacy to speak with the other parent during such times.
7. Video or telephone communication between the children and other parent is facilitated when reasonably requested by the children. The children are given privacy to speak with the other parent during such times.
8. The parents are at liberty to attend the children's school/extracurricular activities, but the father does not attend extracurricular lessons, training, or after school care during the weeks in which the children are in the mother's care unless the mother provides written consent or confirms that she is unable to attend. If the mother is due to collect the children, the father vacates the area at least 10 minutes prior.
9. When attending the children's weekend games/matches, it is assumed that the parent with whom the children are spending time will sit with the team's supporters and the other parent will sit at a reasonable distance to minimise tension between the parents.
10. The parents discontinue yelling at and using physical discipline with the children.
11. The children are referred to a psychologist to address underlying anxiety that may be causing nocturnal enuresis in [W] and [Z] to bottle his feelings, emotions, and experience of bullying. They may be eligible for a mental health care plan via their GP. …
12. The mother continues to engage in therapy to address her heightened symptoms of anxiety.
13. The father facilitates the children's attendance at [AF Club] during his week should the children wish to engage, and at [language] classes online, should they resume.
[Emphasis added]

The family report (at paragraph 192) highlights significant changes from the presentation of parties in the interim report. In the interim report, Ms P clearly recommended that the children’s time with the Father be reduced, in part because of the nature of the Father’s presentation at that time. In the family report, Ms P supports the continuation of the equal time arrangements, I infer, in part because he was presenting to her as more flexible and understanding toward the feelings of the Mother and the children. Ms P also describes the Mother as becoming more anxious and inflexible.
I refer to paragraph 187 of the family report and note that Ms P asserts that the Mother “unilaterally decided” on the 15 kilometre radius of the 2018 final orders, however those were orders made by consent of both parties. The parties agreed and regarded the 15 kilometre limitation as being a 15 kilometre radius or direct line as the crow flies rather than 15 kilometre travel by road.
I place considerable weight on the family report’s contents and recommendations. I place significant weight on the expert opinion of Ms P as to the children’s relationship with each parent. I accept that evidence. I also accept her opinion about the need to safeguard the children’s relationship with the Mother.
Ms P was cross-examined at 11:43am on day 4 of these proceedings. In cross-examination, Ms P’s evidence included:
MR TRIM:In your family report interviews with, for example, [W], you recall she was complaining that her mother works too much?
MS P:Yes.
MR TRIM:Well, having – having regard to that, would you – and would you recommend that the mother be restrained by injunction from working at a place like this on a weekend, for example, when the children are meant to be with her, if – if money is not the issue?
MS P:Yes.
MR TRIM:The need for money is not the issue?
MS P:I certainly don’t think it’s in the children’s best interests because of – that did come across clearly that they already – and this certainly wasn’t mentioned to me, and I did ask about… work. But [W] in particular made it clear … that she felt her mother … worked too much. She also … didn’t want to be attending after school care as frequently as she was. So this is in addition to this. So she was already finding that too much, so I don’t think it’s in the best interests of the children. Obviously, … if it is proceeding, then it is important that they have adequate care if she’s working, but … I can imagine that [W] … would prefer that her mother does not work.
Counsel for the Father questioned Ms P on various topics, mainly highlighting the Mother’s appearance at the interviews as disorganised and that the Mother utilises after-school care due to her working hours.
Counsel for the Mother put to Ms P that the Father was not genuine in his presentation to her in 2022. Ms P regarded him as genuine and the change in his attitude to the Mother as genuine. After observing the Father in evidence I do not accept that the change observed by Ms P, assuming her opinions to be correct, to have endured for very long.
I accept Ms P’s recommendations as to parallel parenting and attendance at events (see paragraph 194) and as to a parenting coordinator.
THE PARTIES’ CASES
The main points of difference between the parties orders sought are:
·Whether the time the children spends with the Father should be week about (sought by the Father and the current arrangements) or an extended alternate weekend plus alternate Wednesday evenings (sought by the Mother);
·Which secondary school the children should attend, or if there should be sole parental responsibility in regard to which secondary school the children attend (sought by the Father);
·What orders should be made in regards to the children’s extracurricular activities;
·Whether there should be an order for one or both parents to not be late for school or extracurricular activities and/or for the procedure if they are late (sought by the Father);
·Whether the parties should appoint a Parenting Coordinator (sought by the Mother);
·Which parent should hold the children’s passports (the Mother seeks that she hold both, the Father seeks that they each hold one child’s); and
·Whether the Mother should be restrained from working when the children are with her (sought by the Father).
Summary of Father’s case and witnesses
The Father seeks the following orders, outlined in Exhibit H1, with the inclusion of 1A, which was discussed in the courtroom on 15 September 2022, and noting that order 3 is in the alternate to order 2:
1.That all previous parenting Orders made in this proceeding be discharged.
1A. Save for the issue of secondary school, the parents have equal shared parental responsibility for the children.
2.That from 1 July 2023 the Father have sole parental responsibility for the children in relation to the high school they attend and for the purpose of this:
a. The Father shall contact the Mother in writing and provide his views about the high school(s) he nominates;
b.The Mother and Father shall make a genuine effort to come to a joint decision about which high school the children will attend; and
c. If no agreement is reached between the parents by 1 July 2023, the Father make the final decision and inform the Mother in writing of it.
3.That the children attend [Q School or [S School] for their secondary schooling, at the parties’ joint equal expense, or such other school or schools chosen by the Father.
4.That the Father pay $100,000 into a trust account as security for payment of any school fees and compulsory incidental expenses.
5.That the children live with the parties on a week-about basis (save for unless otherwise agreed between the parties in writing – including via SMS / email), with changeover to occur at the conclusion of school or 3:15pm on Fridays.
6.That in 2022 the children shall be with the Father for the whole of the term 3 school holidays.
7.That the children’s time with the Mother be suspended:
i.From 4pm on Christmas Eve until 4pm on Christmas Day in 2022, and each alternate year, and from 4pm on Christmas Day until 4pm on Boxing Day in 2023, and each alternate year.
8. The children’s time with the Father be suspended:
ii.From 4pm on Christmas Day until 4pm on Boxing Day in 2022, and each alternate year, and from 4pm on Christmas Eve until 4pm on Christmas Day in 2023, and each alternate year.
9.That unless otherwise agreed in writing, changeover take place at the children’s school, or McDonalds in [Suburb B] if the children are not then attending school.
10.That the parties shall facilitate the children try to speak with their other parent each Sunday and Thursday between 6:30pm and 7pm, and as reasonably requested or facilitated by the children – and with the children to be afforded reasonable privacy during these calls.
11.That the Father retain the passport for [Z] and the Mother retain the passport for [W], and these passports be provided to the parent requiring them at least 48 hours before a scheduled international holiday, and be returned to where they shall be stored within 48 hours of arrival back in Australia.
12.That the parties be restrained by injunction from working shifts on weekends the children are in their care.
13.That if either parent cannot get the children to school or their scheduled activities on time they shall forthwith notify the other parent and request their assistance to facilitate the children get where they need to be in a timely manner.
Those orders are different than those he sought at the beginning of the final hearing. At that time, in an outline of case, the Father proposed orders that the children live with him in an 8-6 arrangement. He also did not then include the orders for the children to attend Q School or S School or the order to pay for the children’s school fees. However I find that the Father felt empowered by the family report (that was more sympathetic to him than the child impact report) to put forward orders that gave him more time with the children and more parental responsibility and to seek injunctions that dictated or restrained the Mother’s activities when the children were in her care.
The Father’s trial affidavit filed 29 August 2022 mainly discusses themes of what the Father perceives as the Mother’s unpreparedness and lateness, the Mother’s work/life balance, and the parents’ co-parenting relationship. The Father’s evidence has a general theme of his disappointment with the Mother’s parenting. I find the Father to be genuine in his expression of fairly constant disappointment and criticism of the Mother’s parenting. I find the Father is not able to entirely or substantially protect the children from his opinions of, and attitude to, the Mother.
On the Mother’s supposed unpreparedness and lateness, the Father argues that the children are not a priority to the Mother, as shown by the Mother dropping them at school and/or extracurricular activities late or not at all, and sometimes without the correct shoes. He argues that the Mother does not support their sporting activities, does not provide them with a stable routine and is not child-focussed. He also includes a passage about the Mother taking the children to her country of origin and that the children do not like “the chaotic schedule driving thousands of kms from place to place and getting sick. They do not like the excessive heat or busy schedule and getting sick from exhaustion.” He claims that only he provides the children with a stable routine, that he owns a large house and has never dropped the children late to school. His affidavit of evidence in chief includes the following:
10. [[Ms T]] and I continue to be a couple, but do not live together) I believe that [the Mother] is single. [The Mother] works full time in Melbourne as [a professional]. I am also professionally employed and work from home 100% of the time. I have very flexible hours and work around the children. The children are my number one priority. When the children are with [the Mother], they attend after school care at least four days a week until 6.30pm. She has been late to pick them up on occasion and fines are enforceable for lateness. I always complete drop off and pick up the children when they are with me and we are always on time/I am always on time. The children have never ever been late for school with me. They have been late for school many times when in their mother’s care…
11.I own and live in a five-bedroom home, not renting, no mortgage, and the children have their own rooms and playrooms and plenty of room to play in, as well as a large backyard in a safe court location.
…
15. The children say to me when they are with me "I love living here and we want to stay with you all the time because we have fun and do not have to go to work with Mummy all the time." They crave the normal routine which only I provide them - and [the Mother] does not. She just fails to provide routine, be it [attending] school on time, attending their sporting commitments (training and games) failing to turn up, and often late. I accept that the children may say this to simply to show their love to me and to appease me. I have no doubt that they probably say the same thing to [the Mother] but whilst they say these things, it is still being said with truthfulness.
…
63. The children are not unwell. They just didn't get to go to their training. I would have been more than happy to take them. [The Mother] just did not want to take them, and she didn't make any arrangements for them to attend. It appears that [the Mother] is simply not child focussed.
64. Another example of not being child focussed is in the family report when [the Mother] took two telephone calls whilst being observed with the children. From my experience, [the Mother] is always on her phone whilst at training or at games and whilst we were together, and at every pick up/change over she always prioritised her work, including telephone calls and other nuisances, over the children.
…
79. [The Mother] is now declining to take the children to their games. This has happened twice this season, and countless times [the Mother] arrives late to Saturday morning games – [I] am always there on time, and there to quickly usher [W] into the stadium and comfort her. [The Mother] has zero interest in the kids sporting interests, and zero regard for their commitment to teams. She disrespects the children and teams this way. The children hate it, and they love me being there and they can only ever always rely on me to be there for them. I have to tell them which Court they are on and rush to get them there as the match has already started. Sometimes when [Z] gets on the court, he gets confused as to which way their team is going and always looks over to me for help and I quickly gesture which way. The children deserve to warm-up, be part of the team and not be looked down upon by their peers when they are late. [I] always prepare water bottles and snacks for the children as [the Mother] does not always bring anything for them.
…
85. I don't say I don't like [country D]. I say is it hot yes?? [in the original]. The children also say they don't like [country D] but deep down they do enjoy going - but definitely not the chaotic schedule driving thousands of kms from place to place and getting sick. They do not like the excessive heat or busy schedule and getting sick from exhaustion.
On the Mother’s work/life balance, the Father argues that the Mother puts work above the children. He alleges that the Mother works shifts at her friends’ restaurant with the children in an upstairs room while she works. He says that the children hate this and are bored and would prefer to spend that time with the Father. In her trial affidavit, the Mother says that she has helped her friend when the restaurant is short of staff two or three times, and that the children play, read books, and eat food upstairs while she works and that they are not affected by these arrangements. The Father’s affidavit includes the following:
60. The [country D] Restaurant referred to is in [[Suburb U]] called [[Restaurant]]. The children have also said that she works there too, and the children are again just put upstairs in a room while she works late into the night. I believe that [the Mother’s] friend owns this [Restaurant].
61. I know that [the Mother] can spend time with the children as she pleases, however I would have thought that spending time with the children on the weekend she has them would have taken precedent over working with her friends in a [Restaurant] with the children in an upstairs room alone and bored. The children hate this, and I would be more than happy to have them in my care whilst she works.
…
97. As [the Mother] cannot look after the children, cannot get them to school and extra-curricular activities on time, I believe that the children should live with more predominately with me to enable [the Mother] to concentrate on her businesses/work life. This is her priority as she, continually demonstrates with her actions, week in week out and especially since and during the family report session with [[Ms P]]. I do not believe it fair on the children to be stuck up in a room for hours on end whilst [the Mother] works at a restaurant or to spend weekends/late weeknights driving around to all hours picking up/dropping off supplies for [the Mother’s] business. The children should be having a routine, going to bed at a reasonable hour and getting to places on time, especially once they start to reach their teenage years and commence at high school. [The Mother’s] current work life does not support their developmental needs or their best interests.
There can be no doubt that the Father genuinely believes these matters about the Mother.
On the Mother’s inability to effectively co-parent, the Father argues that the Mother forced him into the arrangement that he could not have shared care while living in Suburb O, that she unilaterally moved to the zoning catchment for E School in order to enrol the children there, and that she tells the children negative things about him. His affidavit includes the following:
94. I am concerned that the children are not involved in the after - school activities that they wish to be. I do not want our children caught in the middle and at the moment it feels like everything must go [the Mother’s] way or no way at all. It is so frustrating that she does not prioritise our children.
…
96. I am very worried that [the Mother] wants to damage the children's relationship with me by telling them negative things about me and cutting me out of decisions.
I observed the Father closely during the hearing including in the courtroom and particularly during cross-examination in the witness box. During cross-examination, his difficult nature and attitude of condescension and derision to the Mother, including as described in the interim report became very clear. For example, he highlighted issues that most would describe as minor in the toil and trouble of working single parents and demonstrated that he genuinely regarded the Mother as an incompetent parent and simply less important as a person than how he regarded himself. Such was the strength of his genuine feelings about that and the considerable force of his personality demonstrated during his evidence that I came to be concerned about the need to protect the Mother’s role as a parent and her relationship with the children. I find that the description of the Father’s personality and parental attitudes observed in the first report by Ms P were accurate and that the different attitudes of the Father observed in the second report have not endured. I do not accept that the Father has changed or has become more sensitive and considerate or that the presentation of the Father observed in the family report will endure into the future.
In the witness box, I found the Father to be an argumentative and narrowly focussed witness. His style of communication includes the tendency to exaggerate or catastrophise events. As questioning continued over several hours, I found the Father to become more aggressive and petty in his criticisms of the Mother and he satisfied me that he genuinely feels his parenting is superior to the Mother’s and that she is seriously lacking as a parent. I do not find his criticism of the Mother, although genuinely held opinions, to be a reliable account of the Mother’s parenting. When dealing with the Mother the Father sees what are minor matters as catastrophes.
Under cross-examination, the Father gave evidence that included:
MS O’CONNELL:      You do. Okay. Now, you also said basically in the same affidavit you say that you’re the better parent, therefore the children should live more with you; that’s what you put in your affidavit. Okay?
THE FATHER:          Yes.
…
MS O’CONNELL:      You say at paragraph 97, which is right at the end of your affidavit:
As [the Mother] cannot look after the children, cannot get them to school and extracurricular activities on time, I believe that the children should live with more predominantly with me to enable [the Mother] to concentrate on her business/work life. This is her priority, as she continually demonstrates with her actions.
Okay?
THE FATHER:          Absolutely. Yes. Yes.
…
THE FATHER:          The children have a strong emotional connection to their mother and, of course, I want them to maintain and grow that emotional connection with their mother, as well as with myself.
…
MS O’CONNELL:     All right. Now, just going back to these reports, and [Ms P] in the section 11F report said that in her opinion the mother was lacking in self-esteem. Do you agree that the mother lacks in self-esteem?
THE FATHER:           Yes.
MS O’CONNELL:     Yes. And you’ve agreed, also, that you’ve said to her when she forgot a pair of runners for one of the kids that she was pathetic and disgusting; that’s right, isn’t it?
THE FATHER:           No. It’s – I said those words. I’m referring to the act of forgetting is pathetic and disgusting. I’m not saying [the Mother] is disgusting. I’m saying the act of forgetting an item which is critical for our daughter’s [sports] game is pathetic and disgusting.
MS O’CONNELL:     Yes?
THE FATHER:           That is what is absolutely truth.
MS O’CONNELL:     You didn’t say to her, “I’m not saying this about you. I’m saying this about an act that it is pathetic and disgusting”?
THE FATHER:           Sorry, can you repeat – rephrase?
MS O’CONNELL:     All right. You said to the mother, “You’re pathetic and disgusting”, didn’t you?
THE FATHER:           Yes - - -
MS O’CONNELL:     Thanks?
THE FATHER:           - - - in reference to her forgetting the item.
MS O’CONNELL:     Yes?
THE FATHER:           A very simple item.
MS O’CONNELL:     Yes. And knowing that she is a person with low self-esteem, you would imagine that would have a significant impact on her, wouldn’t you?
THE FATHER:           No.
MS O’CONNELL:     No?
THE FATHER:           I don’t think that would impact her at all.
MS O’CONNELL:     Okay. Right?
THE FATHER:           Because I don’t think she believes – doesn’t take on board anything that I say…
…
HIS HONOUR:          You remember the occasion [of the child’s eye injury when the Mother informed the Father]?
THE FATHER:          I do remember the occasion, absolutely, yes. It’s ingrained in my brain the day my daughter sustained a burn on her eye.
HIS HONOUR:          And your response was, “I’m not a doctor” and “I was at work”, yes, to me now. Yes. Yes, Ms O’Connell.
MS O’CONNELL:     Well, what the mother says that you said was, “Why are you contacting me? I’m not a doctor”, that that was the response she got from you; is that correct?
THE FATHER:          I don’t recall the exact words that I said, Ms O’Connell.
MS O’CONNELL:     Do you recall if it was words to that effect, that, “Why are you contacting me”, basically, “I can’t do anything. I’m not a doctor”?
THE FATHER:          Possibly words to that effect. I would be calling a hospital if it happened on my clock and arranging medical treatment urgently, but I wouldn’t be holding a baby over a boiling pan of oil in the first place.
…
MS O’CONNELL:     Can I put it to you that you’re constantly critical of the mother; would you agree with that?
THE FATHER:          Of some behaviours.
…
MS O’CONNELL:     I said you’re critical of her for working too much, aren’t you?
THE FATHER:          Yes, yes.
MS O’CONNELL:     Some people might say the mother has got a great work ethic, but you approach it from the other way, you’re critical; correct?
THE FATHER:          I’m sure she has a great work ethic. She prioritises that over the children’s needs, consistently.
…
MS O’CONNELL:     And you’re critical of the mother because she has taken the children regularly to a [country D] [Restaurant] and on occasion you’ve heard that she has worked in the [Restaurant]; is that right?
THE FATHER:          That’s correct.
MS O’CONNELL:     Yes?
THE FATHER:          And the children are upstairs in a room and being – for a better word, neglected on that weekend, every second weekend. When I cherish the time I have with my children, [the Mother] is choosing to prioritise working in a [Restaurant] and not being paid, so it’s not for financial gain, to forego that time, that quality time with the children and they’re upstairs. And I’ve had a FaceTime conversation with [W] a couple of weeks ago on a Saturday evening. I was at [a sports match] and [W] was on TikTok, so I knew she was online, so I called, and there she is, and I think it’s in my affidavit, maybe 9.30 pm. The time is not the issue, it’s a Saturday evening. [Z] is there in his [puffer] jacket. That demonstrates to me it might be a cold environment, but that is upstairs away from their mother on a Saturday evening which I would be spending with my children, with my children. [the Mother] also mentions that she has got flexible working hours, yet, on occasion, she is late to get the children from [after school care] by 6.30 pm. There you go.
…
MS O’CONNELL:     Because you know that the mother is friends with the owner of the [Restaurant]?
THE FATHER:          Mmm.
MS O’CONNELL:     Very good friends. They socialise; right?
THE FATHER:          Mmm.
MS O’CONNELL:     And so, the mother has been there and helped out on, she says, a couple of occasions, and the kids have been there with her?
THE FATHER:          No, no. The kids are in the same building. The kids are upstairs, isolated, neglected, abandoned.
MS O’CONNELL:     That’s something you don’t know, is it – isn’t it?
THE FATHER:          I had a FaceTime call with my daughter, and as you said earlier, [W] is very intelligent and she tells me these things.
MS O’CONNELL:     Yes. Yes?
THE FATHER:          Yes. Yes.
MS O’CONNELL:     And she wasn’t abandoned, was she?
THE FATHER:          You said she was there with her mother. She wasn’t in the same room as her mother. Her mother is downstairs. And it’s a video of her mother [working], moving glasses around.
MS O’CONNELL:     Yes. Okay. But - - - ?
THE FATHER:          That’s great, but the children are not with their mother on a Saturday evening. They’re upstairs away while she’s working for – not for financial gain, so don’t need the money. What are you foregoing that time for, not to be with your children. That’s my concern.
…
MS O’CONNELL:     And you seem to know a lot about what you think the mother is doing on a weekend; is that a fair comment?
THE FATHER:          That’s right.
MS O’CONNELL:     And you’ve got that from the children, have you?
THE FATHER:          Yes, from [W].
[Emphasis added]

I find that an equal time arrangement is not in the children’s best interests. I find this because of the matters discussed above (when considering matters relevant to the provisions of section 60CC), including the need to protect the children’s relationship with their mother. I observed the Father in the witness box and the strength, and indeed passion, of his feelings antipathetic to, and derisory of, the Mother weigh on me heavily and do not support a continuation of equal time, even with a parallel parenting approach.
Section 65DAA(2), consider substantial and significant time
The parenting order will provide for equal shared parental responsibility. Because I will not make an order for the children to spend equal time with each of their parents, I must consider, and consider seriously, whether the children spending substantial and significant time with each of their parents would be in their best interests and/or reasonably practicable.
Section 65DAA(3) of the Act provides:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)      the time the child spends with the parent includes both:
(i)       days that fall on weekends and holidays; and
(ii)      days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)        the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
I accept Ms P’s evidence as to the nature of the children’s relationship with each of their parents. Because of those relationships and because of the matters referred to in the discussion of the section 60CC factors (above) I find the children having substantial and significant time with the Father and otherwise living with the Mother is in the children’s best interests.
A regime where the children spend 4 nights, over 5 days and each alternate weekend in school term, with the Father, as well as an overnight (over two days) on each other week during the school term will be in their best interests. The children will spend some time with the Father on 7 days each fortnight but live with him for 5 nights of each fortnight during the school term and for one half of the school holiday periods.
Conclusion - the secondary school issue
For all the reasons described above, and in particular the practical difficulty, expense and convenience of both parents, I find that, failing agreement, the children should attend E School (a government school) for their secondary school education.
Who holds the children’s passports
Although largely untouched as in issue in the parties affidavits of evidence in chief and not raised by them in interview with the family report writer, Ms P, the issue of which parent holds the passports for the children agitates the parents.
The 2018 final orders made by consent included a provision about passports at order 12, recited earlier in these reasons. That order provided for the Mother to hold the children’s passports.
The Father’s evidence when asked about this matter in cross examination included the following:
MS O’CONNELL:     Just one other topic: children’s passports?
THE FATHER:        Absolutely. Yes.
MS O’CONNELL:     My client has held those passports. I understand you would like to travel with the children, and my client, of course, travels with the children to [country D]. Her proposal is she holds both the passports, that she wants to hold both of them, so she can keep them up to date regularly. Okay?
THE FATHER:        Mmm.
MS O’CONNELL:     Now, you say you don’t agree to that, as I understand it. You want to hold one of them. Is that right?
THE FATHER:        That’s correct.
MS O’CONNELL:     Yes. And why can’t they just simply remain held by the mother?
THE FATHER:        Okay. Our legal situation that has been going on for four-plus years – I thought and I think the majority of the people in this room thought it was going to be culminating at the end of today. Clearly, that is not going to be the case. Sadly, I see my ex-wife as a flight risk, and I do not want my children just to be disappearing at some point - - -
MS O’CONNELL:     Okay?
THE FATHER:        - - - and therefore one passport with me will prevent one child from travelling. I am never going to prevent my kids from travelling with their mother, but I will be able to sleep at night knowing that they can’t just up and leave.
MS O’CONNELL:     And I put it to you you’ve said nothing in her affidavit about her being a flight risk, have you?
THE FATHER:        No. But, Ms O’Connell, the discussions of – like I said earlier, I – we all expected this to be done and dusted today, and it’s not going to be.
MS O’CONNELL:     No. No. No, you can’t talk about discussions outside of court. Okay. I’m just saying to you there’s nothing in this material that you’ve filed that she’s a flight risk, is there?
THE FATHER:        No.
MS O’CONNELL:     No. And you’ve said before that she owns property here in Melbourne?
THE FATHER:        She owns a property, yes.
MS O’CONNELL:     Yes. Okay. And she has got a good job here too?
THE FATHER:        I believe she has a great job. I would love to know what she earns.
MS O’CONNELL:     Yes. Okay. All right. And in the event there were any necessity in the future for the children to have a [country D] passport for travel, you wouldn’t be opposed to signing for that, would you?
THE FATHER:        I would not allow my children to have a [country D] passport. They have an Australian passport. Australian passport enables the children to travel more extensively internationally than a [country D] passport. Why would they need a [country D] passport?
MS O’CONNELL:     Okay. And why would you oppose it, can I ask?
THE FATHER:        It’s unnecessary.
MS O’CONNELL:     Yes. Any other reason?
THE FATHER:        I don’t believe [country D] is a signatory to the Hague Convention and the children could travel out of Australia on a [country D] passport and vanish.
During final submissions, it was conceded that the Mother’s country of origin is a signatory to the Hague convention and has been since 2016.
It is clear enough that since the 2018 final orders the Mother has held both children’s passports and travelled to and from her country of origin with the children without any incident sufficient to have troubled or caused the parents to raise it with the family report writer or to include in affidavits of evidence in chief.
The Mother seeks the continuation of the passport order as in the 2018 final orders. The Father seeks, as a safeguard, that he holds one child’s Australian passport and the Mother holds the other.
The Father’s evidence does not point to any incident between the 2018 final orders and trial that would cause or explain the vehemence of his attitude. It is not clear whether he has always held an underlying fear, whether reasonable or not, of the Mother failing to return the children after a holiday overseas, despite consenting to the 2018 final orders. It is possible, but I am unable to make a finding on the balance of probabilities, that the Father always had such a fear. It is possible, but I am unable to make a finding on the balance of probabilities, that what he felt to be the support of the report writer in the family report has empowered him, or given him the emotional permission, to raise his underlying concern. It is possible, but I am unable to make a finding on the balance of probabilities, that the Father’s expressed concern comes from his attitude of constant criticism and fault finding of the Mother’s parenting. It is possible, but I am unable to make a finding on the balance of probabilities, that all of these matters contribute to the Father’s current expressed feelings about this.
The attitude expressed in cross examination was contrary to, and contradictory of, the spirit of what the Father told Ms P at the family report interviews about his attitude to the Mother and the children maintaining her connection with, and visiting, her family of origin overseas.
Part VII of the Act is alert to and concerned with the practicalities of life for parents and children: see sections 60CC(3)(e), 65DAA(1)(b) & (c) and 65DAA(2)(d) & (e) recited above. The most practical outcome would be that the parent most likely to be most frequently travelling to and from overseas would hold both children’s passports and make them available to the other parent when that parent is to travel overseas.
The Mother’s country of origin is a party to the Hague Convention. I place some weight on this. The Mother owns property in Australia, has professional employment in Australia, is ordinarily resident in Australia, is an Australian citizen and her country of origin is within the Hague Convention.
I take into account all of the evidence, including the Father’s concern and anxiety about the Mother’s overseas travel. The practicality favours the mother holding both passports. I am satisfied that it is in the children’s best interests that the Mother hold both childrens’ passports.
I am not satisfied that there is any real risk of the Mother failing to return the children to Australia when she travels to visit her family of origin during school holidays. I am concerned at the potential for trouble, and the need for negotiation, about the mechanics of the children’s passports being passed between the parents and the anxiety for each parent and the children arising from that trouble in the Father’s passport proposal.
Only Australian passports?
The issue of whether the children should have passports from the Mother’s country of origin, they being entitled to those, as well as Australian passports or only Australian passports, agitates the parents. This issue, again, was largely untouched in the parties’ affidavits of evidence in chief and not raised by them in interview with the family report writer.
It is clear enough that at least at times the children have held passports from Australia and from the Mother’s country of origin. There is no evidence of any issue or trouble for the children from that circumstance except the Father’s concern and anxiety passionately expressed in cross-examination. Notwithstanding the apparent lateness of this issue, I proceed on the basis that the Father’s concern is genuine.
I am not satisfied that there is any realistic or rational basis for the Father’s concern. I am satisfied that the Father’s concern arises from his general feeling of dissatisfaction with the Mother as a parent and his capacity to catastrophise aspects of the Mother’s parenting. In that sense his concern and anxiety is similar to his opinion of the children being “abandoned” when entertaining themselves upstairs when the Mother is helping a friend in the restaurant.
As discussed above when I have dealt with the additional consideration of section 60CC(3)(g), “background (including lifestyle, culture and traditions)”, I am satisfied that it is in the children’s interests and will advance them in life if they are able to maintain a connection to the culture of their mother’s country of origin which is important to the Mother, and part and parcel of who she is. For the children to have a passport from that country is likely, in a small way, to assist them maintain that connection.
I am satisfied that it is in the children’s best interests to have passports from the Mother’s country of origin as well as Australian passports, with both passports to be held by the Mother. The passports are to be made available to the Father upon request by him in the event that he intends to travel overseas with the children.
Permanent Injunction restraining the Mother from working
It was unquestioned in the proceedings that the Court had power to impose the injunction sought by the Father on the Mother as relating to the best interests of children. However, the Father’s case did not address the considerable caution of the law, whether pursuant to the Act or at common law and law of equity of Australia, of the making of a permanent injunction. Permanent injunctions should not be made because it might be a good idea or a parent has a genuine concern. I am not satisfied that proper grounds have been demonstrated for the making of an injunction preventing the Mother from working whenever the children are in her care.
Further, I am satisfied that the Mother’s parenting of the children when they are in her care, including the occasions when she chooses to work or assist a friend, are in the children’s best interests and that the experience is likely to advance them in life. I made that finding earlier in these reasons when considering the need to protect the children from physical or psychological harm and from being exposed to abuse or neglect. Hence I will not make the injunction sought by the Father.
Christmas Day and long summer holidays
The parents agree that the long summer school holidays, unless otherwise agreed in writing, should be enjoyed by the parents with the children for one half with one parent and the other half with the other parent. The Mother is to have the first half in even-numbered years and the second half in odd-numbered years and the Father is to have the first half in odd-numbered years and the second half in even-numbered years (order 3(c)(i) & (ii) of exhibit A, 2 September 2022).
The dispute is about whether or not Christmas day should be shared because it falls in, or interrupts, the first half of the long summer school holidays. The Mother seeks that there be no provision for Christmas Day so that the whole of Christmas Eve and Day would fall in, or be enjoyed by, whoever has the first half of the long summer school holidays. That is an alternative Christmas regime. This enables the Mother to have more time to travel overseas in those alternative years when she has the first half of the long summer school holidays.
The Father seeks a shared Christmas regime for every Christmas, with one parent having from 4:00pm on Christmas Eve until 4:00pm on Christmas Day with the children and the other having from 4:00pm on Christmas Day until 4:00 Boxing Day with the children in one year, with the position to be reversed the following year and so on. The Father’s position or opinion, again put with impassioned demeanour, was of the importance to him, to his extended family and to the children of every Christmas day or season and of that time being shared by the children with him and his extended family. I accept the Father’s expression of the importance to him of the sharing of part of every Christmas day as genuine. The orders he sought fairly reciprocated the time arrangement each year and changed alternative years. The Christmas Day arrangements as sought by the Father are so commonly agreed to or ordered by the court as to be ubiquitous.
The parties live and will live sufficiently close together as to make the travel for the sharing of Christmas day practical or at least not impractical.
The enjoyment of family getting together at Christmas is not limited to those of devout, or any, Christian beliefs. Christmas is enjoyed by many as a time of family get together and gift giving and holiday without religious connotation or only faint religious connotation. I accept the Father’s evidence that Christmas is an important tradition for him and his family.
If each Christmas is shared, as the Father seeks, this will mean a much shorter time for the Mother to travel overseas with the children during the first half of every second year of the long summer school holiday and that is a significant matter.
Because Christmas is an important tradition for the Father and this country, because the parties live relatively close by and because there are other occasions for a holiday overseas, I find it will be in the children’s best interests if Christmas Day is shared on an alternate year basis as the Father seeks. This is so notwithstanding the shorter time for an overseas holiday when the Mother has the first half of the long school holidays.
Non-school changeovers
Non-school changeovers are agreed to be in the carpark of a particular restaurant. The Mother seeks the additional restraint to facilitate peaceful changeover of the parties staying in their motorcars. The Father sees this as unnecessary. This is in the nature of a permanent injunction and such orders should be made with caution.
I accept that the Mother finds the Father approaching her car and/or opening doors or the boot, as he has done at times, as stressful, unnecessary and controlling. That either parent is stressed at changeover will impact on the children. The children are of an age when they can safely move between cars in the car park and the parents will be alert to ensure the children only move between cars when safe to do so.
I am satisfied that it is necessary to make such an order to ensure a less stressful changeover. However, it is necessary to add the qualification “save in emergency”.
Parenting coordinator and psychologist
Sections 13C and 13D of the Act provide as follows:
13CCourt may refer parties to family counselling, family dispute resolution and other family services
(1)A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders:
(a)that one or more of the parties to the proceedings attend family counselling;
(b) that the parties to the proceedings attend family dispute resolution;
(c)that one or more of the parties to the proceedings participate in an appropriate course, program or other service.
Note 1: Before making an order under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E).
Note 2: The court can also order parties to attend, or arrange for a child to attend, appointments with a family consultant (see section 11F).
(2)The court may suggest a particular purpose for the attendance or participation.
(3)The order may require the party or parties to encourage the participation of specified other persons who are likely to be affected by the proceedings.
Note: For example, the participation of children, grandparents or other relatives may be encouraged.
(4)The court may make any other orders it considers reasonably necessary or appropriate in relation to the order.
(5)The court may make orders under this section:
(a)on its own initiative; or
(b)on the application of:
(i)a party to the proceedings; or
(ii)a lawyer independently representing a child’s interests under an order made under section 68L.
13D Consequences of failure to comply with order under section 13C
(1)If a party fails to comply with an order of a court under section 13C, the family counsellor, family dispute resolution practitioner or provider of the course, program or other service must report the failure to the court.
(2)On receiving the report, the court may make any further orders it considers appropriate.
(3)The court may make orders under subsection (2):
(a)on its own initiative; or
(b)on the application of:
(i)a party to the proceedings; or
(ii)a lawyer independently representing a child’s interests under an order made under section 68L.
It was common ground these provisions empower the appointment of a parenting coordinator.
I find that is in the best interests of the children that this family have the assistance of a parenting coordinator at their parents’ equal expense. I accept this recommendation of Ms P. In this case the parties had the advantage that each of their solicitors were qualified parenting coordinators. There was no dispute as to the form of the orders or the power to order a parenting co-ordinator. The issue was whether the trouble and expense was necessary, as argued by the Father. I consider that it is, and particularly so, given my finding about equal shared parental responsibility and the capacity of the parties to stress each other out with their different approaches to extracurricular and sporting activities.

However, I do not accept the minimum monthly consultation with the parenting coordinator, as sought by the Mother, is appropriate. I regard once per school term as appropriate unless determined otherwise by the coordinator or agreed in writing by the parents. I accept the evidence and recommendation of Ms P that a parenting coordinator would be in the children’s best interests. Because of the parents’ difficulties in respectfully consulting each other, I find that a parenting coordinator will assist the implementation of these orders and will be in the best interests of the children. A parenting coordinator is necessary, in this case, because of the force of the Father’s personality and the extent of the Mother’s anxiety.
I also accept Ms P’s recommendation for the children to attend a psychologist and will make that order in the form proposed by the Mother, noting that that order was largely by agreement.
Sporting & extracurricular activities
The children’s attendance at sporting and extracurricular activities, events that should be occasions of joy and fun, vex this family and are occasions of stress and frustration to the Mother and Father and profound stress to the children. The Mother seeks orders that effectively locks the children into their current activities and compels each parent to take the children to those activities but otherwise seeks orders that do not compel either parent to take the children to any further or new activities. The Father seeks orders that lock the children into attending the current sporting events (and they being involved in sports largely of his choosing) but that what the Mother regards as important, AF Club, being an activity that should be up to the children whether or not they attend every second week in his time.
I accept that extracurricular and sporting activities can be, and often are, of significant assistance to children learning about peer relationships and how to negotiate them. The Father regards team sport activities as very important, if not crucial, to the children’s welfare. The Mother accepts those activities are important but does not see them as being as important in the multitude of the children’s needs, including the need for time with each parent. It is unfortunate for the children that their parents’ attitudes to these matters are so different.
When the Father commenced enrolling the children in these activities, the Mother was not familiar with them and with the importance that many parents in contemporary urban Australia attach to such activities. The Mother has fallen in with the Father’s attitude of placing great importance on those activities and regular and timely attendance at them to a considerable degree.
The difficulty of making permanent orders that will last the entire childhood of the children as to particular extracurricular or sporting activities is that it is likely that the children’s attitudes to, and preference for, different activities, will change or ebb and flow over their childhood.
I do not consider it in the children’s best interests that sporting and extracurricular activities be locked into the particular activities that the parents have been able to negotiate, or tolerate, at this point in time.
I accept that, if a particular activity for the children has been agreed to by the parents at a particular time, it is important both parents support that activity. I do not accept the Father’s position that is in the children’s best interests that there be an order that in the event the Mother anticipates she will be late for an activity that she must contact the Father and arrange for him to collect the children instead. Such an order will lead to further conflict and stress for all involved, and particularly for the children.
The issue of extracurricular activities and the children’s sporting activities will need to be revisited and revised as they advance in life. I am not satisfied that the orders that either parent seeks in regard to extracurricular activities and sporting events are in the children’s best interests.
I regard the review of children’s activities and sporting events as one of the matters that will be necessary for this family to consider from time to time with a parenting coordinator.
The order that I have crafted has its origin from what I understood to be agreed by the parents (in exhibit A). It is not intended that that order lock the children into the particular activities they are now in, and no others, as they get older. It is also not intended that, when either parent is satisfied that it is in the children’s interests to undertake a further particular sport or activity, the other parent must rearrange his or her busy life to accommodate the regime of that sport or sports.
It will greatly advance these children’s lives if the parents are able to agree on and mutually support their extracurricular activities.
The nature of the parental relationship is such that there is wisdom in, and I accept, Ms P’s recommendation for parallel parenting, notwithstanding that both parents should be able to support and attend sporting events, including in the other parent’s time. However, in this case it is necessary that each parent has breathing or living space in the ordinary or mundane extracurricular activities such as training or practice. The parties agree on this and have consented to the form of an order that effectively would prevent each parent from attending at training or practice activities during the other parent’s time unless agreed in writing. Sadly, I agree that such an order is necessary.
CONCLUSION
Final submissions on behalf of the Mother included the following:
HIS HONOUR: Now, the question I want some assistance – or whether you’re able to assist me with it. You may say, “Look, it’s just self-evident”, but the issues that you raise about the father’s opinion of the mother as a parent, his – what you say, continued harassment and the combination – all those list of things and I won’t repeat them – combined with her personality and the impact that that has on her. How does that inform the decision about week-about or ten/four or five/nine? How does that inform that decision?
MS O’CONNELL: My client is concerned about the more time that the children are in the father’s care, the more control he has over the children, the more control he has over her, and the more influence he has over the children against her. So she says from an emotional and psychological perspective, the children are – the best interests are met by being primarily in her care. The evidence does not support that the mother is constantly critical of the father. The evidence does support the other way.
Having observed the parents in the witness box and considered all of the evidence I accept those submissions.
In final submissions, the Father’s counsel included the following submissions:
HIS HONOUR:        What do you say about the dynamic of [the Mother’s] personality, as Ms O’Connell would have it, that was put to [Ms P], that - - -
MR TRIM:Your Honour, I’ve - - -
HIS HONOUR:          - - - she gives up.
MR TRIM:Sure. I’ve got a few things to say about that.
HIS HONOUR:        Yes.
MR TRIM:And it was very telling evidence and it was so relevant. It was to do with the psychometric testing and it completely blew up the argument, in my submission, that this alleged – or the submission that my client is the guy of the 11F report. She went through the psychometric testing and it was valid for him at the family report and it was actually the opposite. The person who had the positive impression management was the mother, and so I think you should be a little bit careful of just accepting the submission and there is some evidence
HIS HONOUR:        You can assume I’m going to be careful about accepting any submission about anything.
MR TRIM:Yes. Okay. No, I gather that, your Honour. I gathered that, which is great, but I’m submitting you should be careful in accepting that she’s as anxious or unconfident as she says she is or as she may have presented because of the psychometric testing of her. And, also, a really big piece of evidence in this case, your Honour, is exhibit H5, which is this invoice, and I will call it the fake invoice. ….
…
MR TRIM:…It’s more to the effect that he was cross-examined about, you know, “Where’s the dishonesty?”, and she knew – she knew full well what the issue was, your Honour, and it only finally, thankfully, emerged today. And so to say she’s – you know, he’s the one that’s confident and she’s just bending over, I don’t think that’s right. It’s a really important document. And with respect to this issue of lateness, your Honour, you might get preoccupied with the business records, the school reports, but that’s just one part of it. My client’s case is late to school, late to pick up, late to extracurricular activities, missing extracurricular activities, late to changeover. It’s across the board and the family report writer supports that or that’s her assessment of the mother. …
Because I carefully observed each of the parents in the witness box, I do not accept those submissions, notwithstanding the skill with which they were made and the lack of candour of the dental bill episode. I accept the Mother’s evidence and Ms P’s opinion about her “giving up”. I do not accept that the Mother’s lateness, although relevant, is the most weighty consideration or determinative of the living arrangements dispute. Having looked carefully at the business records of the children’s arrival at school, and on the basis that all “late” events were in the Mother’s time, I do not accept the Father’s opinion of the (overwhelming) significance of those events. I do not attribute the same weight to that matter that Ms P does notwithstanding that I accept many other aspects of her evidence.
I do not accept the Mother’s 4/10 case. The children will miss their Father if their overnight time with him in school term has the long gap of from Sunday night to the following Thursday week, a 10-night gap. The “meal” proposed in the “other” week will be inadequate and exposes the children to the stress of a non-school evening changeover. Due to the conflict in this family, as far as possible changeovers should be school to school.
In all of those circumstances and because of all the findings described above I determine that neither the Father’s nor the Mother’s proposals for living arrangements and secondary school are in the children’s best interests. The children’s interests will be best advanced by the children living predominantly with the Mother and spending substantial and significant time with the Father in an arrangement where the children spend an extended period over a weekend with the Father from after school Thursday until before school Monday in one week, and from after school Thursday until before school Friday in the other week, along with an equal sharing of school holidays. That is each Thursday the Father will collect the children from school, for either one overnight or for the long four nights over five days of the extended weekend.
The parents largely agreed that phone or video communication would be on Sundays and Thursdays from 6:30pm to 7:30pm, however that was in the circumstances where the Father was pressing for week-about time and the Mother was pressing for alternate weekends. Since I have decided that the Father should spend time overnight Thursdays with the children, the need for communication on Thursdays, to organise travel arrangements for example, is less useful and time on Wednesdays is more appropriate. I will make that change to those proposed orders.
As discussed above, E School, in all the circumstances, is the best option for the children’s secondary school education unless the parents are able to agree upon an alternative, and if that is a private school, the funding of that education.
I otherwise will largely adopt the form of the orders as agreed between the parties (exhibit A of 2 September 2022). I have noted and considered the various objections to the form of those orders pressed by the Father and the Mother. I note that some of the orders I will make are by the Court but were in fact largely by agreement except for the form of the orders.
I will seek the parties assistance, when delivering these reasons, as to the appropriate start date of the two-week school term cycle of 4 nights with the Father in week one and one night with the Father in week two. Hence the orders are at this stage draft orders. There is some difficulty in sorting out the difference between consent orders and the orders each party proposes and hence I will seek the assistance of the parties to examine the draft orders and ensure that any competing orders sought have not been omitted in error. I will then make the final orders.
Following the delivery of draft reasons, the parties counsel requested time to sort out the date of the start of week one and start of week two of spent time arrangements, and to check that none of the matters pressed in the competing minutes of orders sought and the minutes pressed by consent had been omitted in error.
Subsequently the parties providing a joint email (Exhibit C2 1 May 2023) setting out the agreed start dates of week one and week two. Further, the parties advised two orders of the draft minutes, 7(b) and 20, were in fact consented to and should be marked by consent. I will acquis in the request to have those orders marked by consent. Further, the Mother submitted that the following paragraphs of the orders she sought may have been omitted or not considered. The competing orders sought as to largely information provision matters and the subtle differences between what each party sought, and what they had already agreed to by the consent order of A, was all over the place. I will set out those paragraphs and the provisions in the draft orders that cover those matters as follows:

Paragraph of Mother’s minute of orders sought (W1) Paragraph of draft orders dealing with matter Paragraph of consent orders (A) dealing with the matter Reason

17 20(a) 10 I gave greater weight to the drafting of the consent order A and qualified the consent drafting by adding the word ‘save in an emergency’ and the words ‘no less than 14 days beforehand’ to 20(b).

21 13(b) & (c) 11(a) & (b) I gave greater weight to the drafting of the consent order A.

22 13(a) 11(a) As above.

27 20(a) 10(a) As above.

29 21(c) Not agreed See paragraph 96 of the reasons and see below.

Further to paragraph 96, the manner of sharing relatively minor expenses agitates the parents and that agitation impacts on the children. The impact upon the children of the parent’s conflict is out of all proportion to the sums of money involved. Each parent asserted that their annual taxable income was approximately $150,000. I was not addressed about whether either party could claim a credit against child support assessments and there is no live child support application before me and it is unclear to me whether either parent had contemplated that matter. So, I do not make any finding or any order in regard to that consequence of the orders that each party seeks in regard to school fees. Absent consent, there are no shortcuts to bypass or circumvent the complexities of the Child Support Registration and Assessment Acts. Unfortunately, that issue will remain one for the child support authorities, review processes and law, if the parents can’t agree.
And so I make the orders now annexed at the start of these reasons.

I certify that the preceding two hundred and twelve (212) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.
Associate:
Dated: 4 May 2023

File number:	MLC 5969 of 2018
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	4 May 2023
Catchwords:	FAMILY LAW – final parenting orders – children’s living arrangements – whether children should live with parents week about or alternate weekends – whether the court should order where the children go to secondary school – whether orders should be made as to the children’s extracurricular activities – whether there should be an appointment of a parenting coordinator – which party should hold the children’s passports – long standing equal time arrangement – change to existing arrangement in the children’s best interests – secondary school next door to children’s current primary school most appropriate – whether Christmas day should be shared or alternate years.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 13C, 13D, 60CA, 60CC, 61DA, 65DAA, 65DAC
Cases cited:	Fox v Percy (2003) 214 CLR 118 Licata & Buxton [2019] FCCA 3181 Rice & Asplund (1979) FLC 90-725
Division:	Division 2 Family Law
Number of paragraphs:	212
Date of last submission/s:	29 September 2022
Date of hearing:	1, 2, 15 & 16 September 2022
Place:	Melbourne
Counsel for the Applicant:	Mr C. Trim
Solicitor for the Applicant:	Patford-Smith Legal Services
Counsel for the Respondent:	Ms A. O’Connell
Solicitor for the Respondent:	Maeve O’Brien & Associates

MLC 5969 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS UMARU Applicant
AND:	MR MALETTA Respondent

order made by:	JUDGE O'SHANNESSY
DATE OF ORDER:	28 April 2023

Exhibit #	Description
2 September 2022
A	minutes of matters agreed dated 2 September 2022
C1	Google maps printout of directions from Q School to E School
15 September 2022
W1	Minute of proposed orders sought by the Wife marked up with agreed or disagreed
H1	Minute of proposed orders sought by the Husband
16 September 2022
W2	Our Family Wizard messages
W3	Email from 1 July 2022 re: Family Report
W4	1 July email with attachments (8 pages collectively) – instructions re: Family Report preparation
W5	Photo of invoice from dentist

Paragraph of Mother’s minute of orders sought (W1)	Paragraph of draft orders dealing with matter	Paragraph of consent orders (A) dealing with the matter	Reason
17	20(a)	10	I gave greater weight to the drafting of the consent order A and qualified the consent drafting by adding the word ‘save in an emergency’ and the words ‘no less than 14 days beforehand’ to 20(b).
21	13(b) & (c)	11(a) & (b)	I gave greater weight to the drafting of the consent order A.
22	13(a)	11(a)	As above.
27	20(a)	10(a)	As above.
29	21(c)	Not agreed	See paragraph 96 of the reasons and see below.